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J. F.L.D. A.D. 1999 No. 24 J.C.S. IN THE QUEEN‘S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: SARAH LOUISE BARNES GUENTHER and PAUL TIMOTHY GUENTHER RESPONDENT N.J. Sim, Q.C. for the applicant, Sarah Louise Barnes Guenther D.J. Fisher for the respondent, Paul Timothy Guenther FIAT LAING J. March 5, 1999 [1] The applicant applies for interim custody of the one child of the marriage, Jacob, born May 9, 1993. This application prompted a counter-application for interim custody by the respondent, Mr. Guenther. [2] By an agreement dated November 17, 1997, the parties agreed that Mr. Guenther should have interim custody of Jacob. The relevant clause in the agreement states: The Parties agree that the Husband shall have interim sole custody of the child of the marriage and the Wife shall have access to the child of the marriage upon reasonable notice to the Husband. [3] The applicant indicates in her affidavit that on or about July, 1996, she was diagnosed as suffering from unipolar/clinical depression. She states that on or about October 30, 1997, she felt she was beginning to suffer an emotional breakdown and voluntarily admitted herself into the Royal University Hospital for psychiatric treatment, from which she was discharged on November 14, 1997. With respect to the agreement, she states in para. 15 of her affidavit: 15. THAT on November 17, 1997, the Respondent presented me with an Interim Custody and Access Agreement, which signed; however, at that time did not have solicitor and, therefore, did not have any legal advice with respect to my rights. In addition, had just recently been discharged from hospital after having undergone treatment for depression. At that time, the Respondent and sat down and discussed our family situation. The Respondent was crying and told me that he did not want to be divorced or separated because he still loved me. Attached hereto and marked as Exhibit “D” to this my Affidavit is copy of the said agreement [the relevant paragraph of which is quoted above]. [4] The applicant‘s basis for seeking the change in interim custody that can discern from the affidavit material is that the applicant states she was the parent mainly responsible for the care and upbringing of Jacob prior to her hospitalization as the respondent was employed as long-distance truck driver at the time. After the agreement was entered into, the respondent changed jobs and now works day job in Saskatoon. The applicant points out that the respondent‘s sister babysits the child during the week while he is at work, and the applicant states as she is not working it would be better if the child spent this day time with her rather than her sister-in-law. Jacob attends kindergarten each morning of the week and is with Mr. Guenther‘s sister each afternoon. Finally, the applicant is of the opinion she is the more loving and caring parent. There is no allegation the child is in any way at risk in the present arrangement. [5] What this application ignores and there have been others recently, is the consistent case law which states the courts should not vary interim custody arrangements whether legal or de facto in the absence of evidence that the child or children are in some way at risk, or other compelling reason. In Harden v. Harden (1987), 1987 CanLII 4876 (SK CA), 54 Sask. R. 155 (C.A.), Sherstobitoff J.A. on behalf of the Court adopted the statement of Kerans J.A. of the Alberta Court of Appeal in R. v. R. (1983), 1983 ABCA 156 (CanLII), 34 R.F.L. (2d) 277 at p. 284 wherein Kerans J.A. stated: it is at the time of an interim disposition that one should not lightly disturb de facto arrangements: see Cropper v. Cropper (1974), 16 R.F.L. 113 (Ont. C.A.). We should remind ourselves that interim custody is just that: makeshift solution until the correct answer can be discovered. If judge could tell what is best at the outset, there is no need for an interim order. Interim orders are designed to minimize conflict between parents and cause the least harm to the child and determination of the cause. [6] In Prost v. Prost (1990), 1990 CanLII 907 (BC CA), 30 R.F.L. (3d) 80, Hollinrake J.A. in Chambers stated at p. 81: have concluded that there was an error in the Court below in principle. wish it clear that anything say in this judgment should play no part whatever on the issue of custody when the decision is made at trial. The point of error that see in this case is that the governing principle is, on the authorities, that the status quo should be maintained in the absence of any evidence that the children are in some way at risk. There is no evidence before me, nor, as understood counsel, is there any suggestion on their part that the children here are at risk if they stay with their mother. do not think that the Judge below followed this principle in reaching the decision that he did. Hollinrake J.A. at p. 82 referred to the earlier British Columbia Court of Appeal decision Eaton v. Eaton (1987), 1987 CanLII 2950 (BC CA), 11 R.F.L. (3d) 92 in which Mr. Justice Seaton stated at p. 94: There is significantly different question on an interim custody application than on trial itself. Where there is no reason to change an existing situation that situation should normally prevail until trial. [7] More recently in M.(S.R.) v. M.(J.K.) (1997), 1996 CanLII 18251 (MB CA), 24 R.F.L. (4th) 286 (Man. C.A.), Helper J.A. stated at p. 286: The principle has been stated repeatedly: Interim custody orders ought not to be varied in the absence of compelling evidence which calls out for change in the short term. To ignore this principle is to cause needless disruption for the children who are the subjects of those orders. Helper J.A. went on to state at p. 288: It might very well be that the order under appeal foreshadows final order. trial judge, hearing all the evidence and having the opportunity to assess the parties giving their evidence and being cross-examined, might grant the husband permanent custody. But that observation is merely possibility. Custody may very well remain with the wife in the long term. Until that final decision is made, an unwarranted change for the children is not in their best interests. By varying the interim order, the motions judge ignored the best interests of the children in the broad sense. [8] It appears from the foregoing case law, it constitutes an error in principle, and a reversible error in law to vary interim custody arrangements pending trial in the absence of evidence of risk to the child. The foregoing case law indicates that once an interim custody arrangement has been in place for some time, whether de facto, by court order, or by agreement of the parties, the non-primary care parent should not apply on an interim basis to vary the arrangement (except where risk to the child exists), but proceed to final order. In this province, that means obtaining pre-trial date for pre-trial conference, and if the matter is not resolved at that stage, proceed to trial where the Court will determine what is in the best interests of the child. [9] For the foregoing reasons, Mrs. Guenther‘s application for interim custody and the counter-application by Mr. Guenther are dismissed. [10] The applicant also sought in the alternative variation in the access she has to Jacob at this point in time. Jacob is presently enrolled in kindergarten which occupies his mornings. The applicant has access every Tuesday and Thursday from 1:00 p.m. until 7:30 p.m., and alternate Sundays from 10:00 a.m. until 7:30 p.m. The respondent resisted the applicant‘s request for overnight access on the basis that in his opinion the applicant‘s emotional health makes it difficult for her to cope with Jacob over extended periods of time. [11] On this application the applicant has filed a number of medical letters indicating her emotional health is stable at this point in time and supporting her view that she can care for the child over extended periods of time. On the basis of this evidence, I am satisfied Jacob will not be at risk if the applicant is granted overnight access, and it is ordered the applicant have access to Jacob as follows:(1) Every second weekend from after kindergarten on Fridays to 7:00 p.m. Sunday night commencing Friday, March 12, 1999.(2) Every Tuesday from 1:30 p.m. to 7:30 p.m.(3) Every Thursday from 1:30 p.m. to 7:00 p.m. in the weeks the applicant does not have access that weekend. [12] Order accordingly.

FIAT. The applicant applied for interim custody of the one child of the marriage,and in the alternative a variation in access. The father counter applied for interim custody. The parties agreed in 1997 that the father should have interim custody. The mother argued that she was the parent mainly responsible for the care and upbringing of the child prior to her hospitalization for unipolar/clinical depression. The father had been employed as a long distance trucker but now worked days in the city. HELD: The applications for custody were dismissed. Overnight access was granted to the mother. 1)The application ignored the consistent law which states the courts should not vary interim custody arrangements whether legal or de facto in the absence of evidence that the child(ren) are in some way at risk, or other compelling reason. It constitutes an error in principle, and a reversible error in law to vary interim custody pending trial in the absence of evidence of risk to the child. The non-primary care parent should proceed to final order which in this provicne means obtaining a pre-trial date for a pre-trial conference and proceed to trial if custody is not resolved at that stage. 2)The court was satisfied on the basis of a number of medical letters indicating her emotional health was stable that the child was not at risk if the mother were granted overnight access.

2_1999canlii12554.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: McGean Estate (Re), 2008 NSSC 145 Date: 20080512 Docket: Probate No: 20,357 Registry: Sydney In the Court of Probate for Nova Scotia In the Estate of David McGean, Deceased Judge: The Honourable Justice Frank Edwards Heard: March 31 and April 25, 2008, in Sydney, Nova Scotia Counsel: Andrea Rizzato, for the applicants Elizabeth Cusack, Q.C., for the respondent By the Court: [1] This is an Application for an Order removing Joan McGean as one of the Personal representatives of the Estate of David Raphael McGean. [2] Introduction: David Raphael McGean died intestate on May 3, 2007 in North Sydney, Nova Scotia. The Applicant, Theresa McGean, and the Respondent applied for Grant of Administration by application, dated May 4, 2007. By Grant of Administration, issued by the Court of Probate for Nova Scotia, the Applicant Theresa McGean, and the Respondent were appointed Co-Administratrices of the Estate of David Raphael McGean. [3] The intestate, was employed by Marine Atlantic Inc. for approximately thirty-one (31) years. During that period he contributed to pension plan, which was valued following his death in June, 2007 by Marine Atlantic Inc. at two hundred eighty-three thousand two hundred thirty-seven dollars ($283,237.00). [4] Marine Atlantic Inc. determined that the Respondent is spouse within the meaning of the Pension Plan for Employees of Marine Atlantic Inc. and the Pension Benefits Standards Act R.S.C. 1985, c.32 (2nd Supp.), and therefore, began paying survivor benefits to her. As result of the survivor benefits being paid to the Respondent, the Estate received no monies from Marine Atlantic Inc. The Applicants contend that the pension should have been paid to the Estate, rather than the survivor benefits to the Respondent. It is the Applicant’s position that the Respondent was not spouse, within the meaning of the legislation and plan, and is therefore not entitled to the survivor benefits. As such, the Applicants believe that the Estate should commence an action in the Supreme Court of Nova Scotia against Marine Atlantic Inc. and the Respondent for payment into the Estate of the pension plan entitlement earned by the Intestate, and for reimbursement by the Respondent of the amounts already paid to her. [5] The Applicants further contend that the Respondent is in position of direct conflict. The continuing payment of the survivor benefits is an immediate benefit to her, which would be lessened if it were to be paid to the Estate and divided amongst all of the heirs. Unless the Respondent agreed that the pension funds should be paid into the Estate and divided amongst the heirs, the Respondent, as Adminstratrix of the Estate, would be required to bring action against herself, in her personal capacity. [6] Based on the foregoing, the Applicants believe that the Respondent should be removed as Adminstratrix of the Estate. Then the Estate could pursue claim for payment of the Marine Atlantic pension into the Estate. [7] Facts: The Intestate resided at North Sydney, Nova Scotia, at the time of his death. The Intestate had two children, the Applicants, and was separated from his wife, the Respondent. The Respondent is not the biological mother of the Applicants. The Intestate and the Respondent had been separated from one another for approximately twelve (12) years at the time of his death. The Intestate had no common law spouse. [8] The Intestate was employed by Marine Atlantic Inc. from January 1975 until he retired in October 2006. The Intestate was collecting the pension from Marine Atlantic Inc. at the time of his death. Marie Atlantic Inc. has indicated that the total lump sum value of the pension, as of May 31, 2007 was, as was noted above, two hundred eighty-three thousand two hundred thirty seven dollars ($283,237.00). [9] As noted, the Intestate died on May 3, 2007. The Administratrices were unable to locate Will of the Intestate and therefore filed for Grant of Administration. The Applicant, David McGean, did not apply for the Grant, as he is resident in Kellowna, British Columbia. [10] As also noted, Marine Atlantic Inc. has commenced payment of the pension survivor benefit to the Respondent. Marine Atlantic Inc. has refused to make any payment to the Estate. [11] Legislation: The New Act: The Applicants rely upon the Probate Act, S.N.S. 2000, c. 31. Section 61 provides in part: “61(1) On the application of any person, the court may remove personal representative where the court is satisfied that removal of the personal representative would be in the best interests of those persons interested in the estate and, without limited the generality of the foregoing, if the court is satisfied that (a) the personal representative has not complied with an order of the court; (b) the personal representative (I) is neglecting to administer or settle the estate, (ii) is wasting the estate” (Emphasis added) [12] The Application must fail. It is clear that the removal of Joan McGean as personal representative is not in the “best interests of those persons interested in the estate”. It would only be so if the intended lawsuit with Marine Atlantic were feasible. It is not. [13] Section 7.1.1(a) of the Pension Plan reads:“7.1.1 Except as provided under Section 7.1.2 and Section 7.1.3, on the death of the pensioner, survivor benefits shall be paid(a) equal to sixty-six and two-thirds percent of the member’s pension to the person who was his spouse at the time of retirement, during the spouse’s lifetime and to the spouse’s estate as a lump sum on the basis of the commuted value of the payments for the remainder of a five-year period from the date of the member’s retirement if his surviving spouse dies within that period.” (Emphasis added) [14] “Spouse” is defined in Section 1.32 which reads: “Spouse means person of the opposite or same sex who is cohabiting with the member in conjugal relationship at the relevant time, having so cohabited with the member for at least one year or, if there is no such person, person who is married to the member or who is party to void marriage with the member, except that prior to July 1, 1999. ... Prior to December 31, 1986, spouse meant person whom the member was married prior to his date of termination and at least one year prior to his death or retirement.” (Emphasis added) [15] Joan McGean and the Intestate never divorced. They separated in December 1996. Consent Order dated December 10, 1996 obliged the intestate to make payments in lieu of spousal support. He continued to make such payments until two months before his death. [16] On July 18, 2002, the Intestate signed an affidavit of status on deed which reads: “That am the spouse of Joan McGean and have no other spouse or, with respect to the within property, any former domestic partner with the rights contemplated by Section 55 of the Vital Statistics Act, or any former spouse with rights under the Matrimonial Property Act.” [17] Theresa McLean says that, prior to his death, the Testator had made arrangements with Marine Atlantic Inc. to designate himself as single. There is no documentary support for this assertion. Even if there were, the Intestate took no steps to change the Respondent’s status in law, that is, he never divorced the Respondent. [18] There is no question but that Joan McGean was the spouse of the Intestate at the time of his death. As such, she is entitled to be paid survivor benefits pursuant to the plan. Those are the terms that bound the intestate. They now bind his Estate. There is no reason to remove Joan McGean as personal representative of the Estate because there is no feasible action for the Estate to pursue. [19] I am therefore dismissing the application. Jean McGean failed to respond to the notice on the original scheduled date for hearing. She therefore necessitated second date. The Applicants needlessly incurred costs on the original date because of Joan McGean’s failure to respond. Joan McGean is entitled to costs for the second day but these are offset by the expense she caused the Applicants on the first date. The parties therefore will each bear their respective costs. Order accordingly.

The intestate's biological child, who was one of the personal representatives of the estate, wished to sue the intestate's former employer to have the pension to which he was entitled at the time of his death paid into the estate. The other personal representative of the estate, who was the intestate's spouse, was in receipt of survivor benefits under the pension and, as such, was opposed to the intended court action. The biological child applied to have his stepmother removed as a personal representative of the estate. Application dismissed; the removal of the personal representative would only be in the best interests of those persons interested in the estate if the intended lawsuit was feasible, which it was not. The estate was bound by the terms of the pension plan, which provided that the respondent was clearly entitled, as the spouse of the intestate, to survivor benefits and the payment of a lump sum into her estate if she died within five years of the intestate's retirement.

d_2008nssc145.txt

LANE J.A. IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Sutherland, 2009 NSPC 21 Date: May 4, 2009 Docket: 1929864 Registry: Shubenacadie Her Majesty the Queen v. Mark Sutherland DECISION Judge: The Honourable Judge Anne S. Derrick Heard: May 4, 2009 Oral Decision: May 4, 2009 Charges: Occupational Health and Safety Act Section 74(1) Counsel: Glenn Hubbard for the Crown Brad Yuill for the Defence [1] Mark Sutherland owns and operates a family dairy farm. It is his family’s livelihood. Mr. Sutherland has been active in the farming community and has been developing and improving his farm since acquiring it in 1996. He is 38 years old and supports two children. On August 13, 2006, one of his employees, Gary Boake, died in an accident at the farm property. [2] Mr. Sutherland has pleaded guilty to an offence under the Occupational Health and Safety Act , that he failed to take every precaution that is reasonable in the circumstances to ensure the health and safety of persons at the workplace. Mr. Sutherland’s guilty plea relates to the fact that on August 13, 2006, there was a manure pit on the farm that did not have a barrier. Mr. Sutherland’s responsibility to safeguard employees from risks associated with that manure pit arise under section 13(1) of the Occupational Health and Safety Act. The Act also requires, under section 17(1), that every employee, while at work, shall "take every reasonable precaution in the circumstances to protect the employee’s own health and safety...at or near the workplace." [3] On August 13, 2006, Gary Boake, nineteen years old, met ghastly and tragic death. He drowned in a manure pit. The tragedy that resulted in his death unfolded in matter of minutes after he got to the farm. The facts establish that he had been out all night at social event, and like many young people sowing their wild oats, had been drinking and had not slept. His blood alcohol concentration was significantly over the legal limit for operating any kind of vehicle. Nevertheless, he was responsible enough to show up for his job at the Sutherland dairy farm. He probably should not have gone to work in his condition but he did, perhaps because he was not the kind of young man to let an employer down by not showing up. However he was in no condition to be operating equipment, which he needed to do to remove manure to the manure pit, and placed himself at risk. Mr. Sutherland ’s failure was in not securing the manure pit which had its damaged barricade removed while a new one was on order, or not arranging for an alternative to using the pit, alternatives that did exist on the farm at the time. [4] The news of Mr. Boake’s death was the news families dread. And it was the worst news imaginable. Not only had there been an accident, and farm work being inherently dangerous, accidents are daily risk, but Mr. Boake had died. There is nothing that will bring any comfort to Mr. Boake ’s family: they are left to mourn the loss of such young life. His mother, Bonnie McMullen continues to grieve. In her Victim Impact Statement she says the following: think what upsets me the most is not really knowing what he was going through as he was being submerged deeper into the pit. think of him every day, and yes, have the memories, but it is just not the same. want my baby back. Without the support of my husband, family and friends, would not have made it through this ordeal." [5] Section 74(1) of the Occupational Health and Safety Act provides that the penalty for corporation violating the regulations under the Act is maximum fine of $250,000. Section 75 establishes range of additional sentencing options, sometimes referred to as "creative sentencing options" that can include: directing the offender to pay to the Minister an amount for the purpose of public education in the safe conduct of the activity in relation to which the offence was committed, and principles of internal responsibility provided for in the Act; community service; and requiring the offender to comply with such other reasonable conditions as the court considers appropriate and just. [6] The Crown and Defence have taken joint position that the total amount of the fine in this case should be $25,000. have heard submissions on how this penalty should be broken down, into fine portion and portion representing the value of Mr. Sutherland’s time and expertise in educating other farmers about farm safety and promoting new Farm Safety Association. [7] The legal framework for this sentencing has been constructed by the purpose and principles of sentencing found in sections 718 to 718.2 of the Criminal Code, which apply here by operation of Nova Scotia’s Summary Proceedings Act, and the occupational health and safety cases applying these norms. The principles of sentencing for occupational health and safety violations that is reflected in these sections of the Criminal Code mentioned has been described as follows: There are three primary objectives of sentencing for violation of the applicable health and safety legislation. First, there is the deterrence aspect of the sentencing process, both specific to the convicted party and generally for the community. Secondly, there is the retribution aspect of the sentencing process, indicating the moral wrong and the need to reinforce the value or standard that was violated. Thirdly, there is the rehabilitation‑reform aspect of the sentencing process for the convicted party to be assisted in not repeating the offence. [8] Principles of sentencing that must be examined closely in arriving at fit and proper disposition are proportionality, parity and restraint. The principle of proportionality requires that Mr. Sutherland’s sentence be proportionate to his moral blameworthiness for the offence of failing to take reasonable precautions to address the problem of the damaged barricade having been removed at the entrance of the manure pit. Other factors that are relevant to the issue of proportionality in this case are the fact that Mr. Sutherland is before me as an individual not a large corporation and the fact that Mr. Boake also had responsibilities under the Occupational Health and Safety Act that he did not meet. [9] The principle of parity in sentencing requires that "a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances", but this case does not lend itself easily to comparisons. am satisfied that it cannot be equated to Occupational Health and Safety Act cases where fatalities have led to high fines being imposed against corporate offender. Punishment should be mitigated by Mr. Sutherland’s lesser degree of culpability. He also has no prior record for Occupational Health and Safety Act violations. It is material to me as well that the evidence in Exhibit 1, containing diagrams and photographs of Mr. Sutherland’s farm, and the submissions of Mr. Yuill, indicate clearly that Mr. Sutherland was conscientious about safety issues before August 13, 2006 and has endeavored to address and improve safety at his farm since the tragedy of Mr. Boake’s death. He has made substantial changes to the farm since August 2006, including building new dairy barn. These plans were in the works before Mr. Boake’s death but have been informed by this tragedy, including safer method for disposing of manure, through gravity fed tightly spaced gratings that Mr. Sutherland designed himself. [10] The primary goal in sentencing Mr. Sutherland is general deterrence; the sending of message to other employers that safety in the workplace must be rigorously maintained. Satisfying the imperatives of general deterrence in sentencing however has to be accomplished in manner that reflects the particular circumstances of the case. General deterrence may mean different things in different cases. [11] Having accounted for the mitigating factors that apply in this case, Mr. Sutherland’s guilty plea and the steps he has taken since Mr. Boake’s accident to improve safety at the farm, I am satisfied that the joint recommendation of counsel for a total penalty of $25,000 is appropriate in this case. I accept the submission that a $25,000 penalty is a significant penalty for Mr. Sutherland. [12] also accept that the penalty should include significant contribution by Mr. Sutherland to farm safety initiatives. Nothing can bring Mr. Boake back to life but the experience of the tragedy and, very importantly, Mr. Sutherland’s knowledge of addressing farm safety issues, can assist in preventing the loss of another life, which at least will mean that however heartbreaking the loss of Mr. Boake’s life, he will not have died in vain. [13] I am going to direct that the fine portion of the penalty be paid, as is jointly recommended, to the Canadian Farmers’ Disability Registry. That amount will be $15,000. In addition I am directing that Mr. Sutherland perform 160 hours community service specifically with respect to farm safety, including preparation and travel to meetings associated with the issue. can say that regard the total penalty that am imposing here to be substantial penalty for Mr. Sutherland, accepting that this is family run dairy farm. Mr. Sutherland is before me as an individual. have, of course, taken into account that the failure to have met the requirements of the Occupational Health and Safety Act here did result in fatality and so that is material in recognizing the appropriateness of substantial penalty. [14] am not imposing Victim Surcharge for the reason that consider it to be an undue hardship in Mr. Sutherland ’s circumstances and also because the joint recommendation, which have accepted, did not propose Victim Surcharge portion and recommended that Mr. Sutherland be responsible for an amount totaling $25,000, and in doing so, recognized that the components would be straight fine and community service. [15] will finally note that while certainly appreciate that farmers do not work 40 hour weeks, that if one takes conventional 40 hour week, obviously 160 hours is four such weeks and that is how arrived at the 160 hour figure. That is substantial contribution directly by Mr. Sutherland to farm safety in light of his other responsibilities with respect to his dairy business.

The defendant farmer pled guilty to failing to take every precaution that was reasonable in the circumstances to ensure the health and safety of persons in the workplace, after a young employee drowned in a manure pit that was not properly secured due to a damaged barricade having been removed while a new one was on order. Defendant sentenced to fine of $25,000, from which the sum of $15,000 shall be paid to the Canadian Farmers' Disability Registry; defendant ordered to perform 160 hours of community service with respect to farm safety. The defendant was an individual and not a huge corporation, had been conscientious about safety issues prior to this incident and had endeavored to improve safety at his farm after the incident; the deceased had also failed in his responsibilities under the Act and was working with a significant blood alcohol content.

2_2009nspc21.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 299 Date: 2014 09 16 Docket: Q.B.G. No. 913 of 2014 Judicial Centre: Saskatoon BETWEEN: THE UNIVERSITY OF SASKATCHEWAN and THE UNIVERSITY OF SASKATCHEWAN FACULTY ASSOCIATION Counsel: John R. Beckman, Q.C. Marie K. Stack for the applicant Gary L. Bainbridge for the respondent JUDGMENT LAING J. September 16, 2014 [1] The University of Saskatchewan (the “University”) applies for judicial review of decision by Arbitrator Andrew Sims (the “Arbitrator”) rendered on March 24, 2014. The award results from grievance filed by the Faculty Association (the “Association”) on behalf of professor who was approved for tenure at the University by the Tenure Appeals Committee established under the collective bargaining agreement (the “Agreement”), which decision was subsequently reversed by the president of the University and upheld by the Board of Governors (the “Board”) on the basis of the president’s submission that the Board had to accept the president’s decision. The Arbitrator found after reviewing The University of Saskatchewan Act, 1995, S.S. 1995, c. U-6.1 (the “Act”) and the Agreement that the president’s personal recommendation to the Board was not required, and the Board was not obliged to follow the president’s recommendation before considering an application for tenure submitted by one of the committees assigned the power to recommend pursuant to the Agreement. The Arbitrator referred the matter back to the Board to consider the Tenure Appeals Committee decision as if the same had been transmitted to them by the president in accordance with the terms of the Agreement. [2] The grounds of the University’s application are: 1. The Arbitrator exceeded his jurisdiction, made an unreasonable decision, or committed an otherwise reviewable error of law by misinterpreting sections of The University of Saskatchewan Act, and in particular Section 51. 2. This error resulted because, among other things, the Arbitrator failed to apply principles/doctrines of statutory interpretation; including but not limited to his failure to consider: the context and purpose of the legislation; the doctrine of presumed intent of the legislature; the contextual approach; and, the doctrine that the interpretation should not produce an absurd result. [3] Section 51 of the Act states: Power of appointment 51 For the purposes of clause 49(1)(j): (a) no person is to be appointed as faculty member unless that person has been nominated for the position by the president; and (b) no faculty member is to be promoted or removed from office except on the recommendation of the president. ... The issue before the Arbitrator was whether decision on tenure is an appointment within the meaning of s. 51(a) or promotion within the meaning of s. 51(b). The issues on this review are: (1) The standard of review applicable to the Arbitrator’s interpretation of s. 51; is it correctness or reasonableness? (2) Does the interpretation of s. 51 by the Arbitrator meet the applicable standard of review? BACKGROUND FACTS [4] The parties agreed to lengthy statement of facts and the admissibility of number of documents before the Arbitrator. summary of the facts set out in the arbitration decision follows. [5] Effective July 1, 2002 Dr. Despina Iliopoulou was appointed as probationary assistant professor in the Department of Sociology for period of three years ending June 30, 2005. The Agreement provided in Article 13, which is entitled “Appointments”, that probationary period would be extended for further three years, during which period of time the candidate was expected to apply for tenure in the fourth, fifth or sixth years of the probationary period. In letter dated April 5, 2005 the president on behalf of the Board of Governors advised Professor Iliopoulou that her probationary period had been renewed. On August 17, 2007 Professor Iliopoulou requested one-year extension regarding her application for tenure and was granted the same in letter dated October 1, 2008. Her tenure request proceeded during the academic year of 2008, which ended on June 30, 2009. [6] Professor Iliopoulou was recommended for tenure by her Department Renewals and Tenure Committee, but was denied tenure by the next level of peer review, the College Review Committee, which was upheld by the University Review Committee. Professor Iliopoulou then appealed to the Renewals and Tenure Appeal Committee, who upheld her appeal and granted her tenure. [7] The Renewals and Tenure Appeal Committee decision was brought to the attention of the University president by the vice-provost, who was of the opinion the decision was wrong and should be reviewed by the president. The president received portions of the tenure file. He then discussed the file with the provost who thought Professor Iliopoulou’s application was weak one. The president then decided to reverse the decision made by the Renewals and Tenure Appeal Committee. In letter dated June 24, 2009 he informed Professor Iliopoulou that her application for tenure was not granted. [8] This matter earlier proceeded to arbitration before different arbitrator. The earlier award was set aside on judicial review in this court (2011 SKQB 322 (CanLII)) on the procedural ground the president’s decision had not been considered by the Board. The Agreement in Article 15 stated tenure was to be granted only by the Board acting in accordance with the provisions of the agreement. The right to grieve decision on tenure was only permitted under the agreement when the Board had reversed decision of one of the committees, including the Renewals and Tenure Appeal Committee. The review decision left open whether the Board was bound by the president’s recommendation. Foley J. in that decision stated: 18 ... It will also be for the Board to deliberate on whether the Act requires the President’s recommendation as to Dr. I’s tenure and, if so, whether it is obliged to follow that recommendation. ... [9] Following Justice Foley’s decision, the president and the vice-president of human resources submitted request for decision to the Board for its meeting on December 9, 2011. The decision requested was: It is requested that the Board of Governors accept the president’s decision not to nominate Dr. Despina Iliopoulou for permanent tenured position at the University of Saskatchewan or promote her to tenured position, thereby reversing the positive recommendation of the Renewals and Tenure Appeal Committee. The motion was passed by the Board at its meeting. The motion reads: That the Board of Governors accept the president’s decision not to nominate Dr. Despina Iliopoulou for permanent tenured position at the University of Saskatchewan or promote her to tenured position, thereby reversing the positive recommendation of the Renewals and Tenure Appeal Committee. THE UNIVERSITY ACT [10] The relevant sections of the “Act” with respect to this grievance are: Primary role of university 4(1) The primary role of the university is to provide post‑secondary instruction and research in the humanities, sciences, social sciences and other areas of human intellectual, cultural, social and physical development. (2) The board, senate and council are responsible for determining the manner in which the university shall fulfil its primary role having regard to: (a) this Act; and (b) the recognized principles of academic freedom. ... Powers of the board 49(1) The board may: ... (j) subject to sections 50 and 51, appoint the president, the vice‑president or vice‑presidents, the secretary, the faculty members and any other officers and employees that are required to be appointed by this Act or that it considers necessary for the purposes of the university, fix their salaries or remuneration and define their duties and terms of office or employment; ... Term of employment 50 If no term of employment is stated by the board, the term of employment for any person appointed pursuant to clause 49(1)(j) is deemed to be during the pleasure of the board. Power of appointment 51 For the purposes of clause 49(1)(j): (a) no person is to be appointed as faculty member unless that person has been nominated for the position by the president; and (b) no faculty member is to be promoted or removed from office except on the recommendation of the president. PART VIII Officers of the University 73(1) The president is responsible for supervising and directing: (a) the academic work of the university, its faculty members and student body and its officers and employees employed in connection with that work; and (b) the business affairs of the university and its officers and employees employed in connection with those affairs. (2) The president may exercise any powers and shall perform any other duties that are conferred on or assigned to the president by the board. (3) The president shall: (a) call meetings of the board, council and assembly in accordance with their respective bylaws and this Act; (b) make recommendations to the board respecting the appointment, promotion or removal of any faculty member or any of its officers or employees, but the president shall consult an advisory committee set up for that purpose under the bylaws of the board before recommending the appointment of faculty member or of an academic officer; ... The Advisory Committee referred to in 73(3) to be set up for the purpose of advising the president had not occurred, and the committee did not exist. THE COLLECTIVE AGREEMENT [11] The 2007-2009 Agreement is extremely detailed in the matter of faculty appointments, promotion, and tenure. Article 13 deals with appointments to the faculty. Article 13.1 states: 13.1 Appointments to the Faculty. All appointments to the faculty, except Sessional Lecturers, are made by the Board in accordance with the procedures specified in this Agreement. Thereafter follows 11 pages of procedures. Article 13.3.1 states that all appointments to the rank of faculty member are probationary unless otherwise specified. Article 13.3.4 states in part: ... The Appointments Committee will submit to the President for transmission to the Board, the University’s recommendation for the award of tenure on appointment. ... [emphasis added] Article 15 of the agreement addresses the topic of tenure. Article 15.1 defines tenure as follows: ... Tenure means the appointment of an employee to permanent position on the academic staff of the University. Such appointment shall continue subject only to the provisions of Article 15.16. Article 15.3 states: Authority to Award Tenure. Tenure is granted only by the Board acting in accordance with the provisions of this Agreement. The decision of the Board is final and there shall be no appeal within the University against the Board’s decision other than resort to the Grievance Procedure as provided for in Article 15.18, Article 15.19, and Article 28 of the Agreement. The committee process outlined in Article 15 is multi-tiered. Article 15.10.3 (viii) requires the College Review Committee to: (viii) to submit the College’s positive recommendations for renewal of probation to the President for transmission to the Board; its negative recommendations for renewal of probation to the University Review Committee; all its recommendations concerning the award of tenure to the University Review Committee. [emphasis added] Article 15.10.4 addresses the University Review Committee. Articles 15.10.4(v) and (vii) state: (v) to review College recommendations for the renewal of probation from College renewal and tenure committees and all College recommendations for the award of tenure and approve them if they are not inconsistent with the standards of the Department, College, and University. ... (vii) to submit to the President for transmission to the Board its recommendations for renewal of probation and the award of tenure. [emphasis added] Article 15.13 is entitled Renewals and Tenure Appeal Committee: Powers and Procedures. It states in part: Renewals and Tenure Appeal Committees shall meet at the call of the chair and shall conduct their business with dispatch. Renewals and Tenure Appeal Committees shall have the authority to recommend renewal or tenure, deny renewal or tenure, or recommend an extension of probation up to maximum of two years. ... By March 31, meetings and deliberations shall be concluded, decisions rendered and recommendations made to the President for transmission to the Board. [emphasis added] THE POSITION OF THE PARTIES [12] The position of the parties before Arbitrator Sims was much the same as it is on this application. The University’s position is that the Act gives the president the authority to overrule the Renewals and Tenure Appeal Committee in s. 51 of the Act, which states the Board may act only on the president’s recommendation. Fundamental to the University’s position is that the granting of tenure is either an appointment within the meaning of s. 51(a) and/or promotion within the meaning of s. 51(b). It relies on the British Columbia Court of Appeal decision in University of British Columbia v. University of British Columbia Faculty Association, 2007 BCCA 201 (CanLII), 278 D.L.R. (4th) 445; leave to appeal refused, [2007] S.C.C.A. No. 275 (QL) (Rucker decision) for authority that the Agreement cannot fetter the University president’s statutory authority to recommend to the Board appointments and promotions. [13] The Association takes the position that the grant of tenure is neither an appointment nor promotion within the meaning of s. 51(a) and (b). Its position is the reference in s. 51(a) to appointment refers to the original act of appointment to faculty, not to renewals, and not to grants of tenure. In this respect it refers to the definition of faculty member in s. 2(h) of the Act, which states: (h) “faculty member” means person who is employed on full‑time basis by the university or an affiliated or federated college and who serves as professor, associate professor, assistant professor, lecturer, full‑time special lecturer, full‑time instructor, librarian or extension specialist; With respect to s. 51(b) the position is the word “promoted” means between ranks of academic faculty set out in the definition above. THE ARBITRAL AWARD [14] Arbitrator Sims in his award reviewed the literature on tenure from variety of sources. He noted that the University had since at least 1979 published document entitled “University of Saskatchewan Standards for Promotion and Tenure” and noted that the statement treated promotion and tenure as two separate, although related, concepts. The portions of the document quoted are: The award of tenure represents long-term commitment of the University to faculty member. It is status granted as result of judgement, by one’s peers, on both the performance of academic duties and the expectation of future accomplishments. Promotion of colleagues involves an assessment of their success in performing their academic duties and an evaluation of the likelihood of future accomplishments. Tenure and promotion both take place against background of values most recently articulated in Framework for Planning at the University of Saskatchewan, adopted by University Council in 1998. This document guides all of our decisions at the University of Saskatchewan including the collegial decisions of tenure and promotion, which are essential for the University’s standing within the academic community. At the conclusion of his review of articles and cases on tenure, he stated they reveal that: (a) its roots are ancient but it has taken on more contemporary role; (b) tenure is not essential to University. Universities may operate without it and some historically did so, albeit at their peril in terms of their reputation and ability to recruit; (c) tenure provisions, and more specifically the process by which tenure is achieved, are sometimes set unilaterally by Universities, sometimes negotiated as extra contractual policies (sometimes in the form described as “frozen policies”) and sometimes negotiated as part of collective agreement; (d) tenure is sometimes referred to expressly in the statute creating the particular University and sometimes not; (e) tenure usually involves formal approval or granting process beyond the simple judgment by one’s peers, but there is little uniformity as to whether this involves an official like the President or Governing Board, and little uniformity as to when appeals or arbitration is available, and if so, as to which point in the decision-making process any such appeal or right to arbitrate relates. [15] With respect to the president’s powers pursuant to s. 73 of Act, he noted that the scope of this section covers virtually everything over which collective bargaining takes place. He noted there was nothing in s. 73 that allowed the president to negate articles contained in the agreement. With respect to the University’s position that the literature and the authorities support that it is customary for presidents to have the decisive role in matters of tenure, Arbitrator Sims noted: These assertions too must be balanced against decisions, which recognize Presidential authority, but also contractual direction as to the way such authority is to be exercised. See for example, Justice Cameron’s observation in Bilson (supra) [Bilson v. University of Saskatchewan (1984), 1984 CanLII 2421 (SK CA), 16 D.L.R. (4th) 31] that “... the president does not give the board his own views; he draws his recommendation from the permanent faculty of the university ...” [Para. 1] Similarly, from Paine (in the Division Court) [Paine v. University of Toronto (1980), 1980 CanLII 1613 (ON SC), 115 D.L.R. (3d) 461] “.. The president must be taken to have acted through the tenure committee and the appeal committee and their actions are taken as his.” [Page 1] In Diamond v. Hickling 1989 Canlii 2902 (BCCA) [56 D.L.R. (4th) 467] (see below) Lambert J. said: “The President has committed himself to follow the recommendation of the senior appointments committee.” [Para. 5] These references indicate differing views on such questions, discussed in more detail below. [16] The University had relied on the British Columbia decision of Wade v. Strangeway (1994), 1994 CanLII 395 (BC SC), 116 D.L.R. (4th) 714, [1994] B.C.J. 1516 (QL) (B.C.S.C.), Aff’d (1996), 1996 CanLII 2729 (BC CA), 132 D.L.R. (4th) 406, [1996] B.C.J. No. 450 (QL) (B.C.C.A.), where the reviewing judge stated: It is common ground that person who seeks tenure seeks to be “promoted” within the meaning of s. 37(f). Arbitrator Sims noted that s. 27 of the B.C. University Act, R.S.B.C. 1979, c. 419 (since rep.), in question did not refer directly to tenure and opined that the Court’s observation was perhaps based on the parties’ agreement in that case that grant of tenure was promotion. He went on to point out while the B.C. legislation is similar to that in Saskatchewan, that the negotiated procedures involved in processing an application for an award of tenure were significantly different. [17] He next referred to the other main decision relied on by the University, the Rucker decision, supra, and acknowledged the majority of the Court in that case had concluded the statutory grant of authority to the president to make recommendations was paramount, and could not be fettered by the provisions of collective agreement. However, he also noted that the case said nothing about whether the award of tenure is an appointment or promotion, only that if it is, presidential action is necessary precondition to an award of tenure. He also noted that the British Columbia legislation did not contain the equivalent provision in s. 73(3) of the Act that the president shall consult an advisory committee set up for that purpose under the bylaws of the Board before recommending the appointment of faculty member or of an academic officer. [18] The Arbitrator concluded with his ruling and reasons on the meanings of s. 51 and s. 73(3)(b). He stated in part: Does section 51 of the Act mean that the Board may never grant person tenure unless and until they are “nominated for the appointment” or “recommended for the promotion” by the President. After considering the arguments, authorities, and articles set out above, my conclusion is that an award of tenure is neither an appointment nor promotion as contemplated by the Act. It is easy to see that, in their common usage, these terms can overlap. However, this is statute creating and dividing up responsibilities within University and these terms should be given meaning consistent with that context. This Act hardly uses the term tenure at all and not directly in this context. Appointments and promotions have been significant features of University life since its inception. The advent of tenure in its current form is more recent, as described above, and it has emerged in significant part through negotiated changes. There are reasons why legislation might regulate the award of tenure in the same way as promotions and appointments, but there are also reasons why it might be left to University to regulate for itself. It might well be adequately left to the Board of Governors, of which the President is statutory member, acting with the guidance of the academic community under process set by policy or collectively bargained, all without legislative constraint. As noted earlier, this is not choice between Faculty decision and Presidential decision. Rather it is choice between Board of Governors decision and Board decision, but only if the President puts the matter forward, and de facto Presidential decision if the President withholds consent. In my view the legislature has, by default or design, chosen not to restrict the Board’s ability to set up the appropriate process and to award tenure itself. Tenure is closely allied with the concept of probation. Academics are hired in anticipation of their seeking and obtaining tenure. If they achieve tenure they continue with their careers. It is only if they do not that their employment expires at the end of fixed term. This is not quite the same thing as applying for new job. In ordinary employment law, the expiry of probationary period is not considered the advent of new and different hiring. While the academic probation process is more sophisticated, the granting of tenure is still more akin to change in status than new hiring. Promotion, in the University setting, has fairly clear meaning tied to the well accepted academic ranks of professor, associate professor and assistant professor and so on. While colloquially, obtaining tenure is promotion in the sense of “one more step up the career ladder”, it is not in the sense of advancing through the accepted academic ranks, which customarily also involve pay increase. The award of tenure, as understood in the academic world, appears to involve the completion of an academic evaluation process and the consequent removal of the vulnerability inherent with probation. Achieving tenure is the anticipated result, following which they are not longer term or at pleasure appointees but appointees without term who can only be dismissed for just cause and any such just cause, because of tenure, cannot involve an intrusion into academic freedom, although it can include misbehavior or other sufficient cause. interpret appointment in s. 51 as referring to faculty member’s initial appointment, not to each subsequent change in the characteristics of that appointment. interpret promotion as distinct from the attainment of tenure in the same way the distinction is drawn in the University’s own policy statement. [Paragraph 15 supra.] The Strangeway (supra) case clearly proceeds on the basis that tenure is promotion or appointment, but it does so against policy that combines them all together in way different than here, and more significantly it does so on the basis of concession by the parties to that litigation and thus without detailed review of the nature of tenure itself. As result of this interpretation, find no direct clash between the Act and the collective agreement. As result, the University is contractually bound to follow the tenure process it has agreed upon. am reinforced in this conclusion from the evidence of what the parties have done in the past and what has obviously, until the last leg of this dispute, been their common understanding as expressed in the collective agreement, as indicated by their past practice, and as reflected in the University’s own policy statement. However, draw the conclusion above even without considering those factors. These conclusions alone lead me to answer question in the negative. Since tenure is neither an appointment nor promotion within the meaning of those terms in the Act, the power to make an award of tenure, under s. 49(1)(j) is not restricted by the need for Presidential nomination or recommendation under s. 51(3). [19] He then went on to say if he was in error with respect to the foregoing and tenure was in fact either part of appointment or promotion that the Act could be harmonized with the provisions of the Agreement. He referred to the law which discussed the harmonization principle in Durham Regional Police Assn. v. Durham (Region) Police Commissioners, 1982 CanLII 61 (SCC), [1982] S.C.R. 709, 140 D.L.R. (3d) 1, and the cases which followed, which hold that existing legislation must be read in such way as to harmonize with the Agreement unless the operation of the Agreement is clearly excluded by the statute. He concluded: Even if the attainment of tenure is an appointment or promotion within the meaning of the Act, the Saskatchewan Act and this collective agreement can more readily be harmonized. Under the Saskatchewan legislation, s. 73(3)(b) contemplates that the Board will establish an advisory committee for the President. Instead, it has created process through collective bargaining. The existence of s. 73(3)(b) makes it more difficult to conclude the President’s authority should be personal and unfettered, and in my view more reasonable to conclude that it is power to be exercised within parameters set by the Board, which includes collective bargaining. This approach is consistent with those authorities discussed above, including particularly the observation in Bilson that “...the President does not give the Board his own view; he draws his recommendation from the permanent faculty of the university.” Reading the legislation in way that harmonizes its terms with those arrived at through collective bargaining, where possible also accords with the cases that emphasize the value in intra-university dispute resolution. The University’s interpretation would write out the transmission step, the Boards decision-making role in controversial cases and, most significantly, the agreed upon, although limited, ability to arbitrate disputes over the merits and the procedural integrity of the award of tenure process. STANDARD OF REVIEW [20] The parties disagree on the standard of review to be applied to the Arbitrator’s interpretation of s. 51 of the Act. The University’s position is that the standard is one of correctness. The Faculty Association’s position is that it is one of reasonableness. Both parties rely on dicta from Dunsmuir v. New Brunswick, 2008 SCC (CanLII), [2008] S.C.R. 190, in support of their submissions. [21] The passage from Dunsmuir relied upon by the University is para. 60: 60 As mentioned earlier, courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law “that is both of central importance to the legal system as whole and outside the adjudicator’s specialized area of expertise” (Toronto (City) v. C.U.P.E., at para. 62, per LeBel J.). Because of their impact on the administration of justice as whole, such questions require uniform and consistent answers. Such was the case in Toronto (City) v. C.U.P.E., which dealt with complex common law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process issues that are at the heart of the administration of justice (see para. 15, per Arbour J.). Its submission is that the Act is one of general law, that is both of essential importance to the legal system as whole, and outside the adjudicator’s specialized area of expertise. It relies on the Rucker decision, which held that the standard of review in that case of the British Columbia University Act, R.S.B.C. 1996, c. 468, was one of correctness. [22] The paragraphs from Dunsmuir relied upon by the Association are: 54 Guidance with regard to the questions that will be reviewed on reasonableness standard can be found in the existing case law. Deference will usually result where tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), 1995 CanLII 148 (SCC), [1995] S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 CanLII 378 (SCC), [1997] S.C.R. 487, at para. 39. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of general common law or civil law rule in relation to specific statutory context: Toronto (City) v. C.U.P.E., [2003 SCC 63 (CanLII), [2003] S.C.R. 77] at para. 72. Adjudication in labour law remains good example of the relevance of this approach. The case law has moved away considerably from the strict position evidenced in McLeod v. Egan, 1974 CanLII 12 (SCC), [1975] S.C.R. 517, where it was held that an administrative decision [page 224] maker will always risk having its interpretation of an external statute set aside upon judicial review. 55 consideration of the following factors will lead to the conclusion that the decision maker should be given deference and reasonableness test applied: privative clause: this is statutory direction from Parliament or legislature indicating the need for deference. discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). The nature of the question of law. question of law that is of “central importance to the legal system ... and outside the ... specialized area of expertise” of the administrative decision maker will always attract correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, question of law that does not rise to this level may be compatible with reasonableness standard where the two above factors so indicate. 56 If these factors, considered together, point to standard of reasonableness, the decision maker's decision must be approached with deference in the sense of respect discussed earlier in these reasons. There is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness. It simply means giving the adjudicator’ decision appropriate deference in deciding whether decision should be upheld, bearing in mind the factors indicated. The Association submits that deference applies because on the facts in this matter the three factors referred to in para. 55 of Dunsmuir above point to standard of reasonableness. [23] In the Rucker decision, the University president denied promotion to an assistant professor. The Court’s analysis in that matter with respect to whether the standard was one of correctness involved its interpretation of the Administrative Tribunals Act, S.B.C. 2004, c. 45. The B.C. Act specified the standards of review to be applied to administrative tribunals, and concluded in s. 58(2)(c) that for all matters not otherwise identified, the standard of review to be applied to the tribunal’s decision was correctness. The Court concluded the appropriate standard was correctness because the issue fell within s. 58(2)(c). [24] In the recent case of Cape Breton-Victoria Regional School Board v. Canadian Union of Public Employees, Local 5050, 2011 NSCA (CanLII), 298 N.S.R. (2d) 258, the school board had terminated the grievor’s employment because he had had sex with 15-year-old girl, which was above the age of consent at the time, who attended different school than the one in which he worked. The Arbitrator reinstated the grievor, and in the course of his decision reviewed the provisions of s. 40(1) of the Education Act, S.N.S. 1995-96, c. 1, which set out the duties of support staff members. One of the issues on appeal was the Arbitrator’s interpretation of this section of the Education Act. The school board relied heavily on the Rucker decision, supra. [25] In decision rendered on behalf of the Court, Fichaud J.A. noted Nova Scotia did not have the equivalent of s. 58 of the Administrative Tribunals Act, which had been relied upon in the Rucker decision, and, therefore, the Rucker decision was not helpful. He stated judicial review in Nova Scotia was governed by Dunsmuir, and quoted Justice Bastarache in para. 54 of that decision set out above. He concluded: 25 The arbitrator’s mandate, into which s. 40(1) dovetails, was to apply principles of arbitral jurisprudence to determine whether there was just cause for dismissal within the meaning of the collective agreement. That is labour arbitrator’s core function, and within the court’s zone of deference, attracting reasonableness standard of review: Communications, Energy and Paperworkers’ Union, Local 1520, para. 20 [Communications, Energy and Paperworkers' Union, Local 1520 v. Maritime Paper Products Ltd., 2009 NSCA 60 (CanLII)] and cases there cited. Section 40(1) is “closely connected” to the arbitrator’s function in this grievance, under the principle from Dunsmuir, para. 54. 26 agree with the judge that the appropriate standard of review to the award, including the arbitrator’s use of s. 40(1), was reasonableness. would dismiss the Board’s ground of appeal that challenges the judge’s choice of the standard of review. [26] In an earlier decision in Toronto Catholic District School Board v. Ontario English Catholic Teachers’ Assn. (2001), 2001 CanLII 8597 (ON CA), 55 O.R. (3d) 737, [2001] O.J. No. 3748 (QL) (Ont. C.A.) MacPherson J.A. on behalf of the Court identified the issue in the case at para. as follows: The appeal requires consideration of the relationship between the reviewing role of the courts and the decisions reached by an arbitrator. The context within which this general issue arises is an arbitrator’s decisions flowing from his interpretation of the terms of both collective agreement and general public statute. The principal legal issue posed by the appeal is the standard of judicial review of the arbitrator’s decisions: is it correctness or patent unreasonableness? At para. 28 he noted: 28 ... Accordingly, the interpretation of Regulation 298 by the arbitrator in the present case is precisely the situation envisaged by Cory J. in City of Toronto when he enumerated the factors that might give rise to judicial deference. The arbitrator’s interpretation of Regulation 298 made under the Education Act involved an “external statute ... intimately connected with the mandate of the tribunal and ... encountered frequently as result” (City of Toronto, supra, at 506). He went on to note in this case in para. 31 there was privative clause in play by reason of s. 48 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A., which required that every agreement “‘provide for the final and binding settlement by arbitration’ of disputes” and that the Arbitrator’s decision was binding upon the parties. He stated the privative clause was clearly intended to protect arbitral decisions from judicial review. He held the standard of review was not correctness, but patent unreasonableness, which was the arbitral standard at the time. [27] The grievance in this matter is brought pursuant to the grievance procedures set out in Article 28 of the 2007-2009 agreement. Arbitrator Sims is one of the three default arbitrators named in the Agreement. Article 28.6 of the agreement states: Powers of the Arbitrator. The arbitrator shall exercise those powers enumerated in The Trade Union Act, [R.S.S. 1978, c. T-17 (since rep. by S.S. 2013, c. S-15.1] as amended from time to time and the arbitrator’s decision shall be final and binding on both parties. Section 25 of The Trade Union Act, R.S.S. 1978, c. T-1 (since rep. by S.S. 2013, c. S-15.1) mandates that alleged violations of collective bargaining agreements are to be settled by arbitration, and states the findings of the arbitrator are final and conclusive, a form of privative clause reflecting the legislature’s intention that such decisions are not to be lightly interfered with on judicial review. [28] The clauses in Article 15 requiring the president to transmit committee decisions to the Board have been in place for at least the last 20 years. This emerges from the Court of Appeal decision in Bilson v. University of Saskatchewan (1984), 1984 CanLII 2421 (SK CA), 16 D.L.R. (4th) 31, 36 Sask.R. 184, (Sask. C.A.). The decision did not involve the interpretation of the Act, but did involve the Court commenting on the Renewals and Tenure Appeal Committee provisions of Article 15 of the Agreement. In para. the Court stated in part: ...By virtue of Section 62(f) of the University of Saskatchewan Act, R.S.S. 1978, c. U‑6, the grant of tenure is matter for the board of governors of the university, acting on the recommendation of its president who is responsible for the general supervision of the academic work of the university, including its teaching staff. But the president does not give the board his own views; he draws his recommendation from the permanent faculty of the university. Indeed collective bargaining agreement between the university and the Faculty Association provides that the president is merely to transmit the faculty's tenure recommendations to the board of governors. The agreement provides for taking the views of the faculty by means of an elaborate mechanism, which, in this case, started with College Tenure Committee. [29] am not able to accept the University’s major premise that the interpretation of s. 51 of the Act is matter of general law “that is of central importance to the legal system as whole”. As noted in para. 60 of Dunsmuir above, answers to questions that are of central importance to the legal system require uniformity and consistency and is the rationale for standard of correctness. The Act in this case is public statute, but it is not statute that has general application to the public at large. It is governance statute relevant only to the University. The interpretation of section of the Act does not impact anyone beyond those involved in the University. [30] As noted by Fichaud J.A. at para. 28 above, the Rucker decision is one of statutory interpretation of the Administrative Tribunals Act in British Columbia, and does not speak to the standard of review applicable at common law. It is also noted that the Rucker decision predates the Dunsmuir decision. Both Fichaud J.A. and MacPherson J.A. referred to above accepted that deference will usually result where tribunal is interpreting its own statute or statutes closely connected to its function with which it will have particular familiarity. They both considered their respective Education Acts, Acts of far more general application than specific University Act, as being sufficiently closely connected to the arbitrator’s function to justify the principle of deference to the arbitrator’s interpretation. The same rationale applies to the decision of the Arbitrator in this case. [31] The Arbitrator in this matter is one of three default arbitrators written into the Agreement. The Act is the constituent Act of the University from which the authority for it to bargain collectively and enter into collective bargaining agreements flows. Thus, it is closely connected to the Arbitrator’s function of interpreting the provisions of the Agreement. There is no evidence on how often Arbitrator Sims has been called upon to rule on grievances brought pursuant to the Agreement, but as person the law stipulates has special expertise in labour relations, it can be expected he will have some familiarity with the Act. The answer to whether s. 51 of the Act provides the president of the University with veto over matters of tenure does not rise to level that is of central importance to the legal system in Canada. It is of interest only to the two parties to the agreement. The Arbitrator’s decision is protected by form of privative clause. The combination of the foregoing points to standard of deference. [32] I find the Arbitrator’s interpretation of sections of the Act are entitled to deference and the standard of review of such interpretations is one of reasonableness. REASONABLENESS [33] The deferential standard of reasonableness was articulated in Dunsmuir at para. 47 where the following appears: 47 Reasonableness is deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to number of possible, reasonable conclusions. Tribunals have margin of appreciation within the range of acceptable and rational solutions. court conducting review for reasonableness inquires into the qualities that make decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process. But it is also concerned with whether the decision falls within range of possible, acceptable outcomes which are defensible in respect of the facts and law. [34] The University’s position is that the Arbitrator’s interpretation of s. 51 is unreasonable because the Arbitrator did not find that tenure is an appointment pursuant to s. 51(a) of the Act or promotion to permanent faculty position within the meaning of s. 51(b) of the Act. However, the word tenure does not appear in s. 51 or s. 73 of the Act, and so it is not clear from the legislation itself that the words appointment or promotion must include the right to recommend an award or grant of tenure. The fact the University’s position is that the award of tenure is either an appointment or promotion indicates just how unclear it is. 35] However, the history of collective bargaining with respect to tenure clearly indicates the administration of the University did not consider tenure was dependent on the president’s personal recommendation. Where there is doubt about the intention of the legislature, historical administrative interpretation can be relevant factor. In Ruth Sullivan, Sullivan and Driedger on the Construction of Statutes, 4th ed. (Markham: Butterworth Canada Ltd., 2002), it was noted at p. 506: The principle governing the use of administrative interpretation was stated by the Supreme Court of Canada in Nowegijick v. R. [1983 CanLII 18 (SCC), [1983] S.C.R. 29] where Dickson J. wrote: Administrative policy and interpretation are not determinative but are entitled to weight and can be an “important factor” in case of doubt about the meaning of legislation. similar point was made by de Grandpré J. in Harel v. Deputy M.N.R. of Prov. of Que. [1977 CanLII 10 (SCC), [1978] S.C.R. 851]: ... am not saying that the administrative interpretation [relied on by the taxpayer] could contradict clear legislative text; but in situation such as have just outlined, this interpretation has real weight and, in case of doubt about the meaning of the legislation, becomes an important factor. The Arbitrator was entitled to consider the history of collective bargaining between the parties as an important factor in deciding the meaning of ss. 51 and/or 73 of the Act. [36] The Arbitrator acknowledged that other universities based on their legislation and/or policies make reference to tenure as an appointment or promotion, but rejected that such was the case in the Act. He noted that the practices with respect to granting tenure are diverse. He outlined why the legislature back in 1907 may not have wished to limit the collegial approach to tenure decision-making by placing limitation on that collegial process by providing the president with the sole final recommendation. He referred to the past practice of tenure being the subject of collective bargaining, and why it was reasonable to leave the final decision with the Board of Governors. His reasoning is transparent and intelligible throughout. It is also rational. [37] That tenure must be included in the word appointment, or the word promotion, in s. 51 of the Act was not the only conclusion that could be drawn in this matter. The Arbitrator provided more than adequate reasons for his decision, and his decision clearly falls within a range of acceptable and rational conclusions available. The decision satisfies the reasonableness standard. [38] The application to set aside the Arbitrator’s decision is dismissed. The Association is entitled to taxable costs on double Column 3. [39] Judgment accordingly.

HELD: The application was dismissed. The court held that the standard of review of the arbitrator’s decision was one of reasonableness. Section 25 of The Trade Union Act states that the conclusions of arbitrators are final and therefore the court noted they should not be interfered with lightly. Further, the court noted that the decision of the arbitrator was not of significant importance to the general public. The court reviewed the history of collective bargaining at the university and found that tenure was not dependent on the president’s personal recommendation in the past. The court found that the arbitrator’s reasoning was transparent and intelligible throughout. To include the word tenure in the definition of appointment or promotion was not the only conclusion that could be drawn. The arbitrator’s decision was within the range of acceptable conclusions and was reasonable.

8_2014skqb299.txt

J. Q.B. A.D. 1997 No. 187 J.C. E. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF ESTEVAN BETWEEN: JOHN GEORGE LEN and WOODLAWN REGIONAL PARK AUTHORITY DEFENDANT Edward A. Komarnicki for the plaintiff Robert J. Grimsrud for the defendant JUDGMENT DAWSON J. March 3, 2000 [1] The issues herein centre around claim by John George Len (the “plaintiff”) against the Woodlawn Regional Park Authority (the “defendant”) for unpaid holiday pay. [2] The plaintiff sued for damages from the defendant alleging he was constructively wrongfully dismissed from his employment with the defendant. The plaintiff elected to have the determination of liability and the assessment of damages determined by civil jury. The jury determined that the plaintiff was constructively dismissed and awarded the plaintiff damages. [3] In addition to the claim for damages for failure to give reasonable notice of termination, the plaintiff asserted claim against the defendant for unpaid holiday pay that he alleged was owing to him at the date of termination. The plaintiff bases his entitlement to holiday pay on the provisions of The Labour Standards Act, R.S.S. 1978 c. L-1 (the “LSA”). At the time of the jury trial, the issue of the Saskatchewan Court of Queen’s Bench’s jurisdiction to deal with entitlement to holiday pay was being determined by the Court of Appeal for Saskatchewan. The plaintiff and defendant agreed that the jury trial should proceed with respect to the issues of liability and damages, reserving the issue of the plaintiff’s entitlement to holiday pay to myself, in the event that the Court of Appeal determined this Court had jurisdiction to determine the issue of entitlement to holiday pay. Specifically: ... [T]he parties have come to an agreement wherein the pleadings and the issues, both factual and legal with respect to holiday pay, will be severed from the jury and left in reserve until the Court of Appeal renders its decision and after the Court of Appeal renders its decision, those matters will—we will recommence the trial in front of myself as judge alone, and will then deal with the issues, both factual and legal, with respect to holiday pay. [4] In April 1999, the Court of Appeal rendered its decision on the matter in Kolodziejski v. Auto Electric Service Ltd. (1999), 1999 CanLII 12264 (SK CA), 177 Sask. R. 197. The Court of Appeal held that the Saskatchewan Court of Queen’s Bench had jurisdiction to entertain civil action for non-payment of holiday pay. As result, the trial of this matter was reconvened before myself, for determination on the issue of the plaintiff’s claim for unpaid holiday pay. BACKGROUND AND FACTS [5] The plaintiff was hired by the defendant on April 29, 1988 as the superintendent of the Woodlawn Regional Park (the “Park”). Prior to this, the plaintiff had been employed as police officer for twenty years. The plaintiff’s duties as superintendent included managing the general operations of the Park, managing the maintenance of the Park, including all buildings and lands, managing the revenue and expenses of the Park and accounting the same to the defendant and, supervising staff, including hiring and dismissing employees. [6] The Park was open to tourists during the period from May to October in each year. After October in each year, the Park was not open to tourists. Prior to the plaintiff being hired, all of the Park staff, including the superintendent, had been laid off by the defendant in October each year and then rehired by the defendant in the spring. [7] For the first few months after he was hired by the defendant, the plaintiff worked with the previous superintendent learning the job. The plaintiff was paid by the hour, at the rate of $8.00 per hour. Through the summer period of 1988 the plaintiff produced time sheets to verify his hours of work. There was no discussion of holiday pay when the plaintiff was hired in the spring of 1988. [8] In the fall of 1988, around the time that the plaintiff would normally have been laid off by the defendant, the plaintiff put forward, to the defendant, proposal that he continue to work over the winter. The plaintiff proposed that he work 30 hours per week over the winter of 1988-1989. The plaintiff also proposed that he also be paid truck allowance for the use of his truck throughout the year. The plaintiff suggested various projects which he would work on over the 1988-1989 winter months. In addition to the special projects, the plaintiff would keep the roads clean from snow and stock up on firewood. The defendant accepted this proposal. The plaintiff was no longer required to hand in time sheets. The plaintiff was not paid any holiday pay by the defendant for the period April 1988 until the fall of 1988 when the new agreement started. Through the winter of 1988 and early 1989 the plaintiff actually worked 30 hours per week. The plaintiff continued his employment with the defendant after the spring of 1989. [9] In 1990 the plaintiff made another proposal to the defendant. The plaintiff suggested he receive wage increase so that he would be paid the yearly sum of $19,200.00. He based his proposal for remuneration on 40 hour work week, 52 weeks per year. The plaintiff acknowledged that he used 40 hour work week only for the purposes of his proposal. He acknowledged that he did not regularly work 40 hours per week. The plaintiff testified that he sometimes worked more than 40 hours per week in the summer and, that in the winter, he regularly worked much less than 40 hours. The defendant accepted the plaintiff’s proposal and the plaintiff began receiving the remuneration as agreed. There was nothing in the plaintiff’s proposal which addressed the issue of holidays or holiday pay and the issue was not discussed by the parties. [10] In 1991 the plaintiff made further proposal for wage increase. This proposal was also based on 40 hour work week, 52 weeks per year. Again, the plaintiff acknowledged that he used the 40 hours only for the purposes of putting the proposal forward and that it did not reflect the hours he worked. The plaintiff also proposed an increase in the remuneration he received for his expenses, such as his truck allowance and cellular phone allowance. This proposal broke down these allowances into hourly rates, based on the 40 hour work week. The defendant again accepted his proposal. The plaintiff’s work obligations remained the same under this agreement. At no time during any of the discussions did the issue of holidays or holiday pay arise. Neither party raised it and there were no discussions regarding it. The plaintiff testified that when he made the proposals to the defendant he never contemplated holiday pay. In fact he testified that he did not know he was entitled to holiday pay. The defendant’s representatives testified that they believed the remuneration they agreed to pay the plaintiff included holiday pay. [11] As stated, neither party discussed the issue of holiday pay, nor did they discuss or raise the issue of the plaintiff’s time away from his duties or any requirement as to times when he had to be there. In 1988, when the plaintiff was first hired and working 30 hours per week, he took off three days for seminar. On that single occasion he made up the three days he was away from work. However, once the plaintiff went on monthly salary, working all year long, he was never required to make up any time he was away from his duties. [12] From 1990, the plaintiff’s hours of work were very flexible in the winter. It was only in the first winter of his employment that he was required to be at work 30 hours per week during the winter. He did not put in the 30 hours per week in the winter after the first year of employment, nor did he have the number of winter projects that he had in the first year of his employ. After the first year, he had few projects each winter, but mainly, through the winter months, the plaintiff kept the roads clean, ensuring that the walkways and cross country ski trails were clear. The plaintiff usually simply arranged for the local rural municipality or the City of Estevan to clear the snow, although he occasionally cleaned it himself. He also arranged for firewood to be delivered to the Park, his obligation then being to be at the Park when it was delivered. The plaintiff said that in the winter he was at the Park everyday, unless the roads were not clear. If the roads were not clear he did not attend the Park at all in winter. He could not give any estimate of the amount of time he worked in the winter. He did say that some days in winter he would just drive through the Park, which would take him no more than one half hour. He said there was no requirement that he be at the Park for any particular time during the winter. His duties with respect to the Park in winter were minimal. [13] The plaintiff testified that his hours of work in the summer were flexible as well. He said that he worked more hours in summer than in winter, but that his hours were not tracked in either season. The plaintiff said that he sometimes worked longer hours at the Park in the spring, when familiarizing the new employees with their duties, but repeated that it was difficult to pinpoint his hours of work at anytime. [14] The plaintiff was elected an alderman with the City of Estevan in 1988. In 1993 he was elected Mayor of the City of Estevan, position that he has held from January 1994 to the present. The flexibility of his position as Park superintendent allowed him to attend to his aldermanic and mayoralty duties. He was able to go to City Hall to carry out his mayoralty duties every day, during both the summer and winter. He testified that his summer routine as superintendent included meeting with the Park employees in the morning, then leaving the Park during the day, attending to City Hall to attend to his mayoralty duties and then returning to the Park later in the afternoon to again meet with employees. He said this routine occurred from the time he became the mayor. He testified he would go to the Park on the weekends during the summer months. [15] The plaintiff often attended out of town conferences and meetings on behalf of the City of Estevan (the “City”). He was paid per diem and expenses by the City, in addition to his mayor’s salary, whenever he attended functions outside the City of Estevan. He was also paid per diem by the City when he sat on the Board of Revision (which was held in the City of Estevan). The plaintiff took the position that when he attended these out of town conferences on behalf of the City he was also attending on behalf the defendant. However, he was never requested by the defendant to attend these meetings nor was he paid any reimbursement by the defendant for his expenses. It was only the City that paid him per diem and expense remuneration for such meetings. There was one occasion when the plaintiff attended meeting in Minot on behalf of the defendant. On that one occasion he was paid only by the defendant. [16] Records were produced from the City (exhibits P-44 and P-45) indicating the particular days that the plaintiff was paid per diem and travel expenses by the City. Between May 1, 1989 and April 30, 1990 the plaintiff was paid per diem and/or travel expenses by the City of Estevan for 10 days; between May 1, 1990 and April 30, 1991 it was days; between May 1, 1991 and April 30, 1992 it was days; between May 1, 1992 and April 30, 1993 it was 8.5 days; between May 1, 1993 and April 30, 1994 it was days; between May 1, 1994 and April 30, 1995 it was days; between May 1, 1995 and April 30, 1996 it was 10 days; between May 1, 1996 and April 30, 1997 it was 12.5 days; between May 1, 1997 and October 1997 it was it was days. [17] The plaintiff also testified that each year he took personal days away from his duties with the defendant, although he could not tell the court how many. He recalled two separate occasions during the summer season when he and his wife went to the United States for few days. He testified that during the period of his employment with the defendant he went to Regina about twice year each year, for one day at time, for personal reasons. He testified he took no extended personal holidays, in excess of one week while in the employ of the defendant. He also testified that when he was going out of town for personal or City reasons, he did not have to ask for permission to be away from his superintendent duties. He also acknowledged that he took off time for sick days, including time off for leg operation, but he was never required to keep track of those days off. He said generally he was able to take the time away from his duties that he required, for personal and other business concerns. He said that if he left his duties for more than few days he would let the defendant know. However, sometimes during the winter if he was going to be away, he would simply ask one of his laid-off summer workers to fulfill his duties. The summer worker would simply take drive through the Park to make sure everything was fine. The plaintiff did not consider any of these days away from his duties to be holidays. In his opinion he never took holidays from his duties with the defendant, because he was not absent from his duties for three weeks at one time. [18] The plaintiff was dismissed from his employment with the defendant in October 1997. The jury held that the plaintiff had been constructively dismissed from his employment. The jury awarded the plaintiff damages in lieu of notice in the amount of 12 months’ wages. At the time of his dismissal he was earning $1,665.00 per month, inclusive of all benefits, except holiday pay, plus monthly truck allowance of $500.00. The jury also awarded the plaintiff one-half of the truck allowance for the 12 months’ notice period, in the amount of $250.00 per month. The jury also held that the defendant had engaged in bad faith conduct in the manner in which it dismissed the plaintiff. The jury extended the notice period by six months and awarded the plaintiff further damages of six months’ wages and six months’ truck allowance of $250.00 per month for the bad faith conduct. POSITION OF THE PARTIES [19] The plaintiff claims that he has never received holidays or, pay in lieu of holidays, from the defendant from the time he was hired in April, 1988 until his dismissal in October 1997. The plaintiff claims for unpaid holidays for the period, April 1988 to October 1997. The plaintiff also claims holiday pay on the amount awarded by the jury as damages in lieu of proper notice. The plaintiff further claims that the holiday pay owing should be based on his wage, plus one-half of his truck expense allowance. He asserts that the truck allowance was actually part of his wage. That is, he asserts that the amount of the truck allowance was artificially inflated so that he could receive part of his wage as an allowance which would not be subject to income tax. [20] The defendant rejects the plaintiff’s argument and claims that the plaintiff’s contract of employment was all-inclusive. It asserts that the contractual wage included component of holiday pay in lieu of holidays, therefore the plaintiff received holiday pay on each payment of his wages. The defendant claims that the plaintiff made an offer to the defendant and the defendant accepted that offer as inclusive of all remuneration payable to the plaintiff. The defendant states that there was no discussion of additional payment for holidays, nor of time off for holidays, and as such, the plaintiff’s employment contract was all-inclusive and the plaintiff received his holiday pay in lieu of time off with each wage payment that he received. [21] The defendant further asserts that the plaintiff’s all-inclusive contract was more favourable than the minimum standards set out in the LSA. It argues that the plaintiff’s wage and benefits exceeded minimum wage, that the plaintiff determined his own hours of work and, that the plaintiff’s ability to take time off work in totality, exceeded the minimum standard of three weeks of holidays set out in the LSA. [22] In the alternative, the defendant claims that if the court finds that the plaintiff’s contract was not all-inclusive or that it did not exceed the minimum LSA standards, the time the plaintiff spent away from work must be considered holidays. The defendant asserts that the plaintiff was never authorized to attend conferences on behalf of the defendant and that his attendance on behalf of the City must be considered holidays from his employment with the defendant. The defendant also alleges that the plaintiff also exaggerated the amount of time he spent on the job in the winter time. Further it asserts that the reduced winter hours were not in lieu of overtime pay, as the plaintiff was a “manager” within the meaning of s. 4(2) of the LSA and therefore not entitled to overtime. [23] In the further alternative, the defendant claims that the doctrine of estoppel or waiver should apply to prevent the plaintiff from claiming his entitlement to holiday pay. The defendant asserts that the plaintiff never claimed his right to holiday pay for 10 years and the defendant relied on the plaintiff not doing so. The defendant asserts it would be substantially prejudiced if the plaintiff was now allowed to assert that right. [24] Further, the defendant claims that if the court finds that the plaintiff is entitled to holiday pay, the plaintiff should only be entitled to recover back to April 1990 as the plaintiff is limited by The Limitation of Actions Act, R.S.S. 1978, c. L-15 which only allows recovery of money under a contract up to six years after the cause of action arises. [25] Finally the defendant asserts that the plaintiff’s holiday pay should not be based on his wage and truck allowance as “wages” as defined in the LSA does not include allowances for costs. The defendant also asserts that holiday pay should not be payable on the award assessed by the jury as damages in lieu of notice. [26] The onus and burden in wrongful dismissal case rests with the plaintiff. As stated by Laskin C.J.C. for the Supreme Court for Canada in Red Deer College v. Michaels et al. (1975), 1975 CanLII 15 (SCC), 57 D.L.R. (3d) 386 at 390: ... It is, of course, for wronged plaintiff to prove his damages, and there is therefore burden upon him to establish on balance of probabilities what his loss is. The parameters of loss are governed by legal principle. The primary rule in breach of contract cases, that the wronged plaintiff is entitled to be put in as good position as he would have been in if there had been proper performance by the defendant, is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff.... The plaintiff must prove his entitlement to holiday pay in lieu of time off for the period of his employment and for the notice period damages awarded by the jury. However, the Saskatchewan Court of Appeal in Regina v. Caxton Printing Ltd. and Central Press (1953) Ltd., 1977 CanLII 1452 (SK CA), [1977] W.W.R. 410, addressed the presumption that arises out of the LSA. In that case, the Crown charged an employer for failing to comply with the overtime provisions in the LSA. The court stated at p. 414: ... The only way overtime can be considered payable is to assume what the Crown had to prove, namely, that if the employees worked more than eight hours in any one day then, under s. 17 of the Act, overtime was payable. But, even if that is considered as presumption arising from the wording of the Act, it is clearly rebuttable presumption which may be met either by showing an arrangement pursuant to s. 18 or by reference to an agreement under s. 62. Caxton, supra, delineates that plaintiff can rely on presumption arising out of requirement in the LSA, to meet his burden to establish his damage. The onus then shifts to the defendant to rebut the presumption, in accordance with some exception in the LSA. In this case, the plaintiff can rely on s. 30(1) of the LSA to establish he is entitled to holidays: 30(1) Every employee to whom this Act applies is entitled: (a) ... to an annual holiday of three weeks after each year of employment with any one employer .... Section 30(1) of the LSA states that an employee is entitled to an annual holiday of three weeks after each year of employment. Section 31(1) of the LSA states that the employer must permit an employee to take the three week holidays within 12 months of the date on which the employee becomes entitled to the holidays. Section 33 prescribes that remuneration is payable to an employee, in lieu of holidays, for an employee who does not take his or her annual holidays: 33(1) An employee is entitled to receive annual holiday pay in the following amounts: (a) if the employee is entitled to an annual holiday pursuant to clause 30(1)(a), three fifty-seconds of the employee’s total wages for the year of employment immediately preceding the entitlement to annual holiday; (1.1) With respect to an employee who is entitled to an annual holiday pursuant to section 30 but who does not take that annual holiday, the employer shall pay to the employee the employee’s annual holiday pay not later than 11 months after the day on which the employee becomes entitled to the annual holiday. [Emphasis added] The plaintiff may rely on s. 33 to establish that he is entitled to holiday pay in lieu of taking holidays. The onus, then shifts to the defendant to prove that the defendant complied with some exception in the LSA. [27] There are several preliminary issues which must be dealt with at this stage. As preliminary issue, the defendant asserts, that, even if the plaintiff is entitled to holiday pay in lieu of time off, the plaintiff should be considered to have waived this entitlement by his conduct over the years. The defendant asserts that the plaintiff never claimed his right to holidays or holiday pay for 10 years and, that the defendant relied on the plaintiff’s conduct in this regard. [28] Waiver of an employee’s rights under the LSA was considered by the Saskatchewan Court of Appeal in Burmeister v. Regina Multicultural Council (1985), 1985 CanLII 2347 (SK CA), 40 Sask. R. 183. In that case the court considered whether an employee could waive her entitlement to overtime. The court referred to s. 75 of the LSA. 75(1) No agreement, whether heretofore or hereafter entered into, has any force or effect if it deprives an employee of any right, power, privilege or other benefit provided by this Act. (2) This Act applies to agreements made in or out of Saskatchewan with respect to service or labour performed in Saskatchewan. The court held that this section would prevent an employee from waiving her entitlement. Section 75 appears to be full answer to the defendant’s position in this regard. Whether the plaintiff asserted his right to holiday pay or not, he remained entitled to his annual holidays in accordance with the LSA. [29] The next preliminary issue to be determined is the period for which the plaintiff may make such claim for holiday pay. The defendant claims that The Limitation of Actions Act bars any claim for holiday pay prior to April, 1990. [30] Section 3(1)(f) of The Limitations of Actions Act states that cause of action for the recovery of money under contract, express or implied, must be commenced within six years of the date on which the cause arose. In this case, the plaintiff brought his action December 31, 1997. The plaintiff, therefore, can claim for any debt owing to him from December 31, 1991 to his date of termination. The question is, is the plaintiff entitled to holiday pay for any holidays not taken prior to December 31, 1991? [31] Section 30 of the LSA indicates than an employee becomes entitled to three weeks holidays, after each year of employment. In the event the employee does not take the holidays within 12 months after the date on which he becomes entitled to it, s. 33 states that the employer shall pay to the employee the employee’s annual holiday pay not later than 11 months after the day on which the employee becomes entitled to the annual holiday. [32] Here the plaintiff began his employment in April 1988, and became entitled to holidays one year later and, likewise each year thereafter. He became entitled to his holidays for the period of employment April, 1990 to March 1991, in April 1991. If the plaintiff did not take all of his 1990-1991 holidays by March 1992, the defendant would have been required to pay the plaintiff holiday pay by February 1992. The defendant therefore would have owed the plaintiff holiday pay in lieu of the 1990-1991 holidays at December 1991 (assuming the plaintiff did not take such holidays). As such, any debt for the April 1990 to March 1991 holidays would have arisen within the statutory period of six years. Therefore, the plaintiff can claim for any holiday pay in lieu of time off that he can establish that he was entitled to from April, 1990 to his termination date. [33] further preliminary issue to be determined is the amount on which any holiday entitlement should be based, in the event the plaintiff proves he is entitled to holiday pay. The plaintiff claims that the proper amount on which to base any holiday pay entitlement is his monthly wage plus one-half of his truck allowance, which was $250.00 per month. The plaintiff asserts that the truck allowance portion should be included as it was really part of his wage and only designated as an allowance to avoid taxation. [34] The defendant denies this claim, arguing that the truck allowance should not be included in any computation of holiday pay, if the plaintiff is entitled to holiday pay. The defendant relies on the LSA definition of “wages”: In this Act: ... (r) “wages” means all wages, salaries, pay, commission and any compensation for labour or personal services, whether measured by time, piece or otherwise, to which an employee is entitled. The defendant claims this definition does not include an expense allowance and therefore the plaintiff’s truck allowance should not be included in the calculation of his holiday pay entitlement. [35] In this case, the jury awarded the plaintiff damages he suffered for loss of his truck allowance. Such awards have been made to an employee where he loses an employment benefit that also benefitted him personally. In this case, however, the plaintiff argued before me that the allowance was really wage disguised for the purposes of avoiding paying income tax. Wimmer J. in Smith v. General Recorders Ltd. (1994), 1994 CanLII 5152 (SK QB), 121 Sask. R. 296 (Q.B.) at para. 36 addressed such claim: [36] At the time Smith received his notice of termination he was receiving $45,000 per year comprised of salary of $39,000 and car and gas allowance of $6,000. The car and gas allowance was fiction intended to allow Smith to escape payment of income tax. He never used his car on company business, the practice being to rent car or use company-owned car for such purposes. While making no finding as such, this arrangement bears all the characteristics of scheme for tax evasion. As matter of public policy, no court should appear to countenance such an arrangement by taking it into account in an award of damages. That case would appear to be applicable in this case. The plaintiff clearly indicated that the $250.00 portion of the truck allowance was made to avoid paying tax. As such, it would be contrary to public policy for this Court to appear to endorse the plaintiff’s actions by calculating his holiday pay on the basis of his wage and this portion of his truck allowance. Any holiday pay owing to the plaintiff will be calculated only on the plaintiff’s wage. [36] As stated earlier, the plaintiff can rely on s. 33 of the LSA to establish he is entitled to holiday pay in lieu of taking holidays. The defendant then bears the onus of rebutting the presumption of entitlement in accordance with some exception set out in the LSA. now turn to this issue. [37] Under the LSA there are only two ways in which an employer may choose to pay an employee in lieu of actually giving holiday time off. The first is in accordance with s. 37 of the LSA. That section requires that the employer and employee enter into written agreement stating that the employee will not take the holidays he is entitled to, due to shortage of labour. The plaintiff and defendant here did not enter into such written agreement. [38] The second way an employer may choose to pay an employee in lieu of giving holiday time off is to establish that the employment contract terms are more favourable in terms of conditions, hours of work, holiday benefits or rate of wages than those requirements set out in the LSA. Section 72(1) of the LSA states: 72(1) Nothing in this Act or in any order or regulation made under this Act affects any provision in any Act, agreement or contract of service or any custom insofar as it ensures to any employee more favourable conditions, more favourable hours of work or more favourable rate of wages than the conditions, the hours of work or the rate of wages provided for by this Act or by any such order or regulation. [39] Wedge J. in Board of Education of Prince Albert School Division No. v. Saskatchewan (Minister of Human Resources, Labour and Employment) (1991), 1991 CanLII 7896 (SK QB), 101 Sask. R. 266 (Q.B.) held that nothing in the LSA prohibits an all-inclusive contract where the contract provides total package more favourable than the minimum standards in the LSA. In the Prince Albert School Division case, the plaintiff was employed by the defendant through five one-year contracts. The first of these contracts stated that the contract was all-inclusive. The final contract stated that the salary included statutory holidays and annual vacation pay. The other contracts were silent as to holiday pay. Wedge J. determined that it was the intention of the parties that all contracts would include holiday pay based on the wording of the contracts read together. [40] Maurice J. in Regina (City) v. Saskatchewan (Minister of Human Resources, Labour and Employment) et al. (1991), 1991 CanLII 7781 (SK QB), 89 Sask. R. 211 (Q.B.) also made similar finding. He determined that firefighters received better payment for statutory holidays than mandated by the LSA. In making this determination, Maurice J. compared the benefit in the collective agreement pertaining to statutory holidays to the minimum standards in the LSA. [41] In Canada Safeway Ltd. v. Director, Labour Standards Branch (Sask.) and Betteridge (1993), 1993 CanLII 6720 (SK QB), 117 Sask. R. 163 at para. 13 (Q.B.) the court compared the holiday pay provisions in collective agreement to those in the LSA. In addressing the issue Barclay J. quoted from Regina v. Caxton Printing Ltd. and Central Press (1953) Ltd., 1977 CanLII 1452 (SK CA), [1977] W.W.R. 410 at 419 and 421 (Sask. C.A.): The appellants’ submission has properly identified one problem that arises in the construction of s. 62(1). There is another problem: In determining whether any provision in an agreement prescribing rate of pay is more favourable than its counterpart contained in the Act, should that provision be isolated from the rest of the agreement and be treated as unaffected by the other provisions of the agreement—dealt with in vacuo so to speak—and the comparison between it and its counterpart in the Act then made, or should that provision and its effect be first evaluated in the light of the other provisions of the agreement then, only after such evaluation has taken place, should the comparison be made? ... As to the second problem, my conclusion is that the legislature intended the rate-of-pay provision in any agreement to be read and evaluated in the light of the other provisions of the agreement before comparison is made with its counterpart in the Act. That the legislature contemplated that it should be left open to demonstrate that provision (in an agreement) on its face less favourable than its counterpart in the Act is, in fact, more favourable than the latter is evident not only from the wording of the section but from the decision itself to include the second branch of s. 62(1) in the section.... In Canada Safeway, supra, Barclay J. found that over number of years of employment, the employee was better off under the collective agreement than the employee was under the LSA, even though the minimum standard was not met in particular year. [42] In this case, the plaintiff relies on s. 30(1)(a) to establish that he was entitled to three weeks of holiday time following each year of employment with the defendant. Therefore the defendant must establish (in accordance with s. 72(1)) that the plaintiff’s employment contract was more favourable than the standards in the LSA. To meet this burden, the defendant claims that the plaintiff’s monthly wage contained component of holiday pay and that the plaintiff’s total employment package exceeded the LSA standard. The defendant argues that the plaintiff is not entitled to the minimum standards in the LSA in addition to the more favourable contractual benefits. [43] Whether the plaintiff’s monthly wage included component of holiday pay and whether the plaintiff’s employment contract exceeded the LSA standard is question of fact. [44] The plaintiff’s 1990 employment contract was based on proposal made by the plaintiff and accepted by the defendant. The proposal indicates that the plaintiff based his wage on 40 hours per week, 52 weeks per year. The plaintiff and the defendant both indicate that holiday pay was never discussed. The 1990 proposal speaks only to wages. The plaintiff’s 1991 employment proposal speaks to wages and expense allowances. From the evidence of both parties it is clear that these two proposals are not the whole terms of the plaintiff’s contract. The 1990 proposal does not discuss the expense allowances, yet the 1991 proposal indicates percentage increase to the plaintiff’s 1990 expense allowances. The proposals were amendments to larger employment package that began when the plaintiff was hired in 1988. In 1988 the plaintiff was hired on an hourly wage and enjoyed all the implied standards in the LSA. When the plaintiff changed to monthly wage, there was no agreement that there would be change in his holiday entitlement. Further, the plaintiff was allowed to take days off from his employment with the defendant without being required to reimburse the defendant for the time away, in each year. The defendant’s position that the contract included component of holiday pay each month is inconsistent with its position that the plaintiff took these days off as holidays during the year. In this case I am not convinced that the contract of employment included a component of holiday pay in lieu of time off. [45] The question then is whether the holiday benefits contained in the plaintiff’s employment agreement are greater than the minimum standard in the LSA. The plaintiff was able to take off from his duties for as many days as he required and was not required to attend to his duties on any given day. In each year, he took time off from his duties with the defendant to attend exclusively to City business. In addition he took personal days each year. He could be away from his duties without notice to his employer. He only notified the defendant if he was going to be away for few days at one time, and then only in summer. In winter he simply made arrangements for someone else to check the Park. Further, the plaintiff was not required to attend to Park duties for any particular time on any given day. In the summer, he could attend to the Park in the morning and then again in late afternoon, leaving him free to attend to other business during the day. In the winter he did not attend to the duties at all if the roads were covered with snow and if they were not, sometimes his duties would take no more than 30 minutes. He was able to spend good portion if not the majority of the day on his mayoralty duties or personal business. Despite the fact that the plaintiff was given wide flexibility by the defendant in his position as superintendent, the evidence is not conclusive as to whether his contract of employment provided him with more than three weeks holidays in each year. The defendant bears the onus of proving that the benefits of the contract were greater than the minimum standard in the LSA, and it has failed to do so. In these circumstances the provisions of the LSA relating to holiday pay apply. The plaintiff was entitled to holidays or holiday pay in lieu of taking holidays. [46] As stated, the onus and burden in wrongful dismissal case rests with the plaintiff. While the plaintiff can rely on the LSA to establish he is entitled to holidays, and while the defendant bore the onus to prove the employment contract was more favourable than the LSA minimum standard, the onus remains on the plaintiff to prove his damages. The onus is on the plaintiff to prove that he did not take his three weeks holidays during the period of this claim. The plaintiff points to s. 70(1), (j), (k) and (l) of the LSA in an attempt to shift the burden to the defendant to prove that the plaintiff did take holiday time. Section 70 states: 70(1) Every employer shall at all times keep readily available for inspection by the minister or his duly authorized representative, in each place of business operated by him in the province or in connection with which any employee is employed or in such other place or places as are approved by the minister, true and correct records showing particulars of every unwritten contract and copy of every written contract or other document dealing with wages or other monetary benefits to which any employee is entitled and, in respect of each of his employees or the employment of each of his employees: ... (j) the date upon which the employee becomes entitled to each annual holiday; (k) the dates on which each annual holiday is taken by the employee; (l) the amount paid to the employee in respect of each annual holiday to which the employee is entitled and the date of payment. This section requires an employer to keep those records for the purpose of inspection by the minister. Had the defendant kept such records, the plaintiff could have relied upon them to prove the debt owing to him. But failure to keep records for the inspection of the minister does not result in reverse onus. The onus remains on the plaintiff to establish what holidays he did not take: that is his loss. [47] The plaintiff admitted to taking time away from his duties for personal time and for City business as mayor. The plaintiff claims, however, that the time spent on City business was also spent on behalf of the defendant and should therefore not be considered holidays. The plaintiff argued that when he attended some of these out of town conferences on behalf of the City, he also attended on behalf the defendant. He suggested that he was not away from his employment duties with the defendant on these occasions, as he was representing the defendant at such meetings or seminars. However, the evidence does not support the plaintiff’s assertion. The plaintiff was only requested by the defendant to attend one meeting in Minot on behalf of the defendant. On this one occasion the defendant paid the plaintiff for his attendance. At no other time did the defendant request the plaintiff to attend the meetings that the plaintiff was attending on behalf of the City. The plaintiff received no instructions from the defendant with respect to representation at such meetings or conferences. Though the meetings may have been of interest to the defendant, the plaintiff was not there in his capacity as superintendent. The defendant was not paid any per diem nor any reimbursement for his expenses by the defendant. It was only the City that paid him per diem and expense remuneration for such meetings. The plaintiff’s suggestion that he was not away from his employment duties with the defendant when he was out of town attending conference on behalf of the City or sitting on Board of Revision for the City is implausible. [48] The plaintiff asserts that even if he was away from his duties as superintendent, any time that he took off while employed by the defendant should not be considered holidays because he did not take the time away in one uninterrupted three week period. As noted before, s. 31(1)(b) indicates that an employee shall be permitted to take holidays in one uninterrupted period. Section 31(1)(c) allows an employee to give written notice to his employer of an arrangement for taking his holidays other than in one uninterrupted period. This subsection appears to indicate that the employee may choose the manner in which his holidays are to be taken if he follows the notice requirement in s. 31(1)(c). The employer “shall” then permit the employee to take his holiday in the proposed manner. In this case, the plaintiff was very free to choose the days he was away from his employment duties. Although the plaintiff did not provide the notice required in s. 31(1)(c), the defendant allowed the plaintiff to take days off in any manner he chose. It is inconsistent that the plaintiff’s failure to comply with the notice requirement meant for the benefit of the employer could be used by an employee to disclaim that his days off were holidays. [49] The plaintiff also claims in the alternative that the days he took off were part of his compensation for the overtime hours he worked during the spring and/or summer. He points out that he was never paid time and half as required by s. of the LSA for the hours of overtime he worked. The defendant denies this claim by asserting that the plaintiff was not entitled to overtime as he fell within the managerial exception in s. 4(2) of the LSA: 4(2) Part of this Act does not apply to an employee who performs services that are entirely of managerial character. The word “entirely” in s. was considered in Hill v. Begg, [1987] S.J. No. 824 (QL) (Q.B.) by Wimmer J. He held that doing some hands on work did not exclude managerial employee from this exception. The term “managerial character” was considered in Westfair Foods Ltd. v. Director of Labour Standards (Sask.) (1995), 1995 CanLII 6185 (SK QB), 136 Sask. R. 187 (Q.B.) by Klebuc J. He held that what constitutes “managerial character” varies with the facts of each case, but also held that there are some fundamental indicia of “managerial character”. At para. 24 he stated: ... The fundamental ones in my opinion are: (1) the supervision and direction of other workers; (2) the discipline of subordinates, individually or as part of management team; (3) evaluating the performance of subordinates; (4) hiring and promoting of subordinate staff; (5) some independence and discretion in performing assigned duties; (6) supervision of collective agreement, where the work place is unionized; (7) negotiating remuneration individually rather than collectively; (8) level of remuneration, vis-à-vis, non-managerial staff; (9) participation in carrying out the employer’s budgets and performance requirements. This list is not intended to be all inclusive; nor must each criterion be found to exist before an employee’s position can take on managerial character; nor is each criterion entitled to equal weight. To the contrary, in my opinion only the functions of supervision and right to discipline are of fundamental importance and therefore of greater significance. [50] In this case, the plaintiff asserts himself, in his statement of claim, that his responsibilities as superintendent of the Park were managerial. He stated that his duties included, inter alia: (a) the hiring, dismissal and supervising of other Park staff; (b) the management of the maintenance of the park, including all buildings and lands; (c) the management of the revenue and expenses of the Park and accounting same to the Defendant; and (d) the management of the day-to-day operations of the Park. [51] The evidence presented also bore out that the plaintiff carried out managerial duties. The plaintiff’s duties are indicia of managerial character as outlined in Westfair Foods, supra. Even though the plaintiff performed hands on work at the Park, he cannot disclaim his managerial role. In Burmeister, supra, Wakeling J.A. stated at para. 27: In any event, the respondent cannot upgrade the responsibilities of her job for the purpose of satisfactory severance and downgrade the same job for purposes of an overtime claim. The plaintiff was clearly manager within the meaning of the LSA. Further, even if the plaintiff were not a manager, the plaintiff failed to prove, on a balance of probabilities, that he worked overtime hours in excess of the statutory minimum, in the spring or summer or at any time, in order to qualify for overtime. The plaintiff did not establish that he in fact worked overtime. Any days off taken by the plaintiff cannot be considered taken in lieu of overtime. [52] The days that the plaintiff was away from his employment duties with the defendant are holidays as defined in s. 30 of the LSA. [53] As stated, the plaintiff bears the onus of proving his damages. That is, he bears the onus of proving that he did not receive three weeks holidays each year over the course of the period of his claim. The evidence indicates that the plaintiff was away from his duties with the defendant for the purposes of City business between April, 1990 and April 30, 1991 for days between May 1, 1991 and April 30, 1992 for days; between May 1, 1992 and April 30, 1993 for 8.5 days; between May 1, 1993 and April 30, 1994 for days; between May 1, 1994 and April 30, 1995 for days; between May 1, 1995 and April 30, 1996 for 10 days; between May 1, 1996 and April 30, 1997 for 12.5 days; between May 1, 1997 and October 1997 for days. In addition, the plaintiff indicated that he took time off for personal reasons, including approximately two days per year to travel to Regina. He took some holiday time with his wife during couple of years. During the winter season there were occasions where he did not attend at all to Park duties. His evidence with regard to time away from his duties was that he took no extended personal holidays of longer than one week while in the employ of the defendant. On the balance of the evidence presented the plaintiff has failed to satisfy me that he did not receive his three weeks holidays in each year. In fact, on the evidence before me find that in some years he took more than three weeks holidays. The plaintiff is not is entitled to any holiday pay for the period of April 1990 to October 1997. [54] The plaintiff also claims holiday pay on the notice period damages awarded by the jury. The jury awarded the plaintiff damages in lieu of notice for period of one year, plus an extension of the notice period of months. The plaintiff claims therefore that he should be entitled to holiday pay on this notice period of 18 months. The defendant denies the plaintiff is entitled to holiday pay on the damages and relies on Herbison v. Intercontinental Packers Ltd. (1983), 1983 CanLII 2398 (SK CA), 29 Sask. R. 296 (C.A.) and Henderson v. Bristol-Meyers Squibb Canada Inc. (1996), 1996 CanLII 6830 (SK QB), 146 Sask. R. 127 (Q.B.) as authority that holiday pay is not paid on notice period damages award. Cameron J.A. in Herbison, supra, stated at paras. [17] While Mr. Herbison’s contract entitled him to employment for an additional eighteen months, it did not guarantee him the right to work every day, and, at the end of the period, demand that he be paid holiday pay”, equal to 6/52's of his earnings during these eighteen months. In the same way that he was entitled to holiday, the company was entitled to have him take it, rather than pay him “holiday pay”. On the face of it s. 33 does not entitle him to holiday pay. [18] It must be borne in mind, as well, that this is an action for the recovery of damages for breach of contract, the measure of which is prima facie the amount Mr. Herbison would have earned had the employment continued for an additional eighteen months—less, of course, his earnings from his new employment. This is what he will recover under his judgment: his losses in full. Why then should there be added to this recovery, further sum, the entitlement to which is predicated on the assumption (for which there is no evidence) that, had the company continued to employ him, it would not have permitted him to take holiday as it would have been required to do by law? It is difficult to find the damage. Laing J. in Henderson, supra, determined that Herbison, supra, was dispositive of claim for holiday pay on notice period damages. He held in that case that the question was whether the plaintiff would have been required to take her annual holiday and he found that there was no evidence that she would not have been required to do so. [55] This line of inquiry has also been pursued in the Ontario case law. In Wright v. Kimberly-Clark Canada Inc. (1995), 1995 CanLII 7279 (ON SC), 11 C.C.E.L. (2d) 34 (Ont. Crt. J. (Gen. Div.)), Platana J. reviewed the leading cases from the Courts of Appeal in Alberta, Saskatchewan and British Columbia and found that none of the courts had awarded holiday pay on notice period damages based on similar reasoning. At para. 61 he concluded: [61] This reasoning is sound. Unless the plaintiff demonstrates an actual loss occasioned by the loss of vacation entitlement, or evidence that he was entitled to take pay in lieu of the vacation, there should be no compensation for same and the plaintiff’s claim in that regard is not allowed. The plaintiff here took his holidays each year and would likely have continued to do so had he continued in the employment of the defendant through the notice period. The plaintiff is not entitled to any damages for holiday pay on the notice period. [56] For the reasons stated, the plaintiff’s claim for holiday pay is dismissed with costs.

A jury determined the plaintiff was constructively dismissed from his employment as park superintendent in 1997 and awarded damages for failure to give reasonable notice. The defendant claimed the contract of employment was all inclusive; that the plaintiff exaggerated the amount of time he spent on the job in winter; that the reduced winter hours were not in lieu of overtime pay as he was a manager within the meaning of s.4(2) of the LSA; the doctrine of estoppel or waiver applied as he never claimed a right to holiday pay for 10 years and the employer relied on his not doing so; if the plaintiff is entitled to holiday pay he should only recover back to April 1990 as he is limited by the Limitation of Actions Act; it should not be based on wages plus truck allowance as wages as defined in the LSA does not include allowances for costs. The claim for unpaid holiday pay claimed from April 1988 to October 1997, based on his wages plus one-half his truck expense allowance, was reserved pending a decision by the Court of Appeal as to whether the Court of Queen's Bench has jurisdiction to determine the issue of entitlement to holiday pay. HELD: The claim was dismissed with costs. 1)The Court of Appeal held in Kolodziejski v. Auto Electric Service that the Queens' Bench has jurisdiction to entertain a civil action for non-payment of holiday pay. 2)The plaintiff may rely on s.30(1) of the LSA to establish he is entitled to holidays and on s.33 to establish he entitled to pay in lieu of taking holidays. The onus then shifts to the defendant to prove it complied with some exception in the LSA. Section 75 prevents an employee from waiving his or her entitlement. Whether the plaintiff asserted his right to holiday pay or not, he remained entitled to his annual holidays in accordance with the LSA. 3)The plaintiff can claim for any holiday pay in lieu of time off that he can establish he was entitled to from April 1990 to his termination date. Section 3(1)(f)of the LAA states that a cause of action for recovery of money under a contract, express or implied, must be commenced within 6 years of the date on which the cause arose. 4)The plaintiff clearly indicated that a portion of the truck allowance was made to avoid paying tax. As such it would be contrary to public policy for the Court to appear to endorse the plaintiff's actions by calculating his holiday pay on the basis of his wage and this portion of his truck allowance. 5)The defendant's position that the contract included a component of holiday pay each month was inconsistent with its position that the plaintiff took these days off as holidays during the year. The contract of employment did not include a component of holiday pay in lieu of time off. 6)Failure by the defendant to keep records for the purpose of inspection by the minister does not result in a reverse onus. The onus remains on the plaintiff to establish what holidays he did not take. 7)The plaintiff admitted to taking time away from his duties for personal time and for city business as mayor. The plaintiff was not there in his capacity as superintendent. Section 31(1)(b) indicates that an employee shall be permitted to take holidays in one uninterrupted period. The defendant allowed the plaintiff to take days off in any manner he chose. It was inconsistent that the plaintiff's failure to comply with the notice requirement meant for the benefit of the employer could be used by an employee to disclaim that his days off were holidays. 8)The plaintiff was clearly a manager within the meaning of LSA. Even if he were not a manager, he failed to prove, on a balance of probabilities that he worked overtime hours in excess of the statutory minimum in order to qualify for overtime. Any days off taken by the plaintiff could not be considered taken in lieu of overtime. The days he was away were holidays as defined in s.30 of the LSA. 9)He did not establish he did 3 weeks holidays.

6_2000skqb94.txt

J. Q.B.J. A.D. 1995 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN and FLOYD GERALD LALIBERTE and WALTER VILLEBRUN APPLICANTS P.A. Tondevold for the applicant, Floyd Gerald Laliberte B.G. Morgan for the applicant, Walter Villebrun T.B. Macnab for the respondent JUDGMENT HRABINSKY J. November 14, 1995 The applicants (accused) were arraigned and each plead not guilty to the following counts: That they: 1. on or about the 21st day of February, A.D. 1994 at or near Saskatoon, Saskatchewan did steal cigarettes and $27.00 cash from 7-11 convenience store, 3303A 33rd Street West, while armed with an offensive weapon or imitation thereof, contrary to Section 343(d) and Section 344 of the Criminal Code. 2. on or about the 21st day of February, A.D. 1994 at or near Prince Albert, Saskatchewan did have in their possession property, 1993 Mercury Topaz automobile of value exceeding one thousand dollars knowing that all of the property was obtained by the commission in Canada of an offence punishable by indictment contrary to Section 354(1) of the Criminal Code. Following the "not guilty" pleas both accusedapplied for an order pursuant to s. 24(2) of the Charter ofRights and Freedoms for exclusion of evidence consisting of aknapsack and its contents on the grounds that the knapsack andits contents were obtained in contravention of their rights tobe secure from unreasonable search and seizure pursuant to s.8 of the Charter, such that admission of this evidence wouldcontravene their Charter rights. THE FACTS On the voir dire the Crown called Constable Roger Jones, 1-year veteran in the Royal Canadian Mounted Police who was stationed in Prince Albert. He testified that in the morning of February 21, 1994 he received radio call from the Rosthern Detachment advising him of theft of approximately $50.00 at Trappers Service in Duck Lake. His assistance was required to intercept small light blue car with an out-of- province license plate with two native people in it travelling north toward Prince Albert. He was advised that the driver had tatoos on the back of his hands and the other individual was intoxicated. He drove toward Duck Lake and met the Rosthern R.C.M.P. detachment officers. Assuming that the light blue vehicle had made it into Prince Albert, he radioed Sgt. James Bell who advised him that he located the vehicle at approximately 9:45 a.m. Cst. Jones met Sgt. Bell at 19th Street and 4th Avenue in Prince Albert at four-plex. They approached apartment "B" and knocked on the door. On examination-in-chief Cst. Jones said he heard someone say, "Come in". He announced that it was the police and walked in followed by Sgt. Bell. He observed two children in the living room and woman standing at the top of the stairs. The woman told them her name was Myrna Johnson and said she lived there. In response to question posed by Cst. Jones she said she knew the two men to see them only but did not know their names. conclude therefore that apartment "B" was not the home of either of the two accused. In response to another question the woman said that the two men had just arrived. He asked her if two fellows had come in. She said nothing but looked toward the kitchen at which time he saw the two accused sitting at the table with bottle of liquor and two glasses. Cst. Jones said that they fit the descriptions he had been given. He told the accused that he was investigating theft of money from Trappers Service at Duck Lake and asked for their names. There was no reply. He told them he thought they were responsible for the theft. Floyd Laliberte stood up and Cst. Jones grabbed his wrist. scuffle ensued. He and Sgt. Bell wrestled Floyd Laliberte to the floor. They arrested and hand-cuffed him. Floyd Laliberte refused to divulge his name and refused to willingly accompany the officers outside. During this time Walter Villebrun sat peacefully at the table. He accompanied the officers peacefully and was hand-cuffed. The two officers read Floyd Laliberte his rights and gave him the warning. They also advised him the reason for his arrest. Walter Villebrun was also read his rights and was given the warning. Both accused were searched for weapons. They found one $20.00 bill, two $10.00 bills, one $2.00 bill, one $1.00 bill in Floyd Laliberte's pocket. Walter Villebrun had some cassette tapes, hockey cards, black leather gloves and toque. On cross-examination Cst. Jones admitted that he made notes on the day in question which contain, inter alia, the following: We knocked on the door and rang the No answer. turned knob. It was unlocked. went in calling out, "It is the police". Saw couple of kids and Cst. Jones said that about the same time when he was making his notes (he was not sure if it was before or after) he made up police report which shows that at 10:05 a.m. on February 21, 1994: arrived and we went to the door. knocked and rang the door bell. thought heard "come in". opened the door and shouted "police" when entered. saw couple of kids and woman. went up the stairs to the kitchen. Sgt. Bell went to the basement. Sgt. James Bell, 32-year veteran with the R.C.M.P., testified that he was informed by Cst. Jones that he was going out toward Rosthern to assist the Rosthern Detachment in connection with theft at Trappers Service in Duck Lake. Sgt. Bell left to assist Cst. Jones in intercepting small blue car with an out-of-Province license. In the car were two natives who had numerous tatoos on their arms. When he realized that he missed the car he returned to Prince Albert. He stopped at Shell service station where he learned that car fitting the description with two natives fitting the descriptions had been there. At 395 19th Street and 4th Avenue, Sgt. Bell located the car bearing British Columbia license number PCL 314. He observed two natives fitting the descriptions given to him leave the car and enter the four-plex. Sgt. Bell asked tenant if two individuals had gone into his suite which was suite "A". The tenant replied, "No, into apartment `B' ". When Cst. Jones arrived they knocked on the door and announced their presence as police. Sgt. Bell said that they were admitted into the apartment. According to him the lady reacted favourably to their presence. Sgt. Bell confirmed much of Cst. Jones' testimony. However, Sgt. Bell said that as they started going down the stairs after hand-cuffing the two accused he noticed an open knapsack full of cigarettes in plain view. He said he had been transferred about year before to Prince Albert from Moosomin where they had been plagued with cigarette thefts. Accordingly, he assumed the cigarettes were stolen because of the quantity and because of the various brands: cartons of Export packs of Rothmans King Size packs of Players Filter packs of Players Light packs of Players Extra Light pack of Players King Size Extra Light. Sgt. Bell asked the woman if they were hers and she answered, "No, or something to that effect". Sgt. Bell seized the leather knapsack and the cigarettes. On cross-examination Sgt. Bell said he did not hear what was said from inside apartment "B" after they rang the doorbell because he has trouble hearing at the best of times. He also admitted that he did not know if they were investigating theft or break and enter. THE ISSUES Was there violation of the applicants' s. Charter rights and, if so, should the evidence of the leather knapsack and the cigarettes be excluded pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms? THE LAW Sections and 24 of the Canadian Charter of Rights and Freedoms read: 8. Everyone has the right to be secure against unreasonable search or seizure. (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. The pertinent portions of s. 495 of the Criminal [450] (1) peace officer may arrest without warrant (a) person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence, (2) peace officer shall not arrest person without warrant for (a) an indictable offence mentioned in section 553, (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or (c) an offence punishable on summary conviction, in any case where (d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according (3) Notwithstanding subsection (2), peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of (a) any proceedings under this or any other Act of Parliament; and (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2). (emphasis added) THE RIGHT TO ENTER PREMISES The accused bear the burden of persuading the Court that their Charter rights or freedoms have been violated or denied, once they have shown that the search was warrantless search. The Crown has the burden of showing, on balance of probabilities, that the search was reasonable. See: Collins v. The Queen (1987), 1987 CanLII 84 (SCC), 33 C.C.C. (3d) (S.C.C.). In R. v. Landry (1986), 1986 CanLII 48 (SCC), 25 C.C.C. (3d) (S.C.C.) Dickson C.J.C. (Chouinard, Lamer and Wilson J.J. concurring) stated at p. 13: peace officer making an arrest on private premises without warrant is in the execution of his or her duty for the purposes of s. 450(1)(a) of the Criminal Code if the criteria of that section and the standards enunciated in Eccles v. Bourque have been satisfied. The proper questions to be asked are: 1. Is the offence in question indictable? 2.Has the person who is the subject of arrest committed the offence in question or does the peace officer, on reasonable and probable grounds, believe he or she has committed or is about to commit the offence in question? 3.Are there reasonable and probable grounds for the belief that the person sought is within the premises? 4.Was proper announcement made before entry? An affirmative answer to all of these questions will mean that the arrest is lawful. find that Cst. Jones believed on reasonable grounds that the accused committed theft of approximately $50.00. The punishment for theft where the value of what is stolen does not exceed five thousand dollars is set out in s. 334(b) of the Criminal Code as follows: [294] Except where otherwise provided by law, every one who commits (a) (b) is guilty (i) of an indictable offence and is liable to imprisonment for term not exceeding two years, or (ii) of an offence punishable on summary conviction, where the value of what is stolen does not exceed five thousand dollars. The offence in question may be prosecuted either as an indictable offence or as an offence punishable on summary conviction. Section 34(1)(a) of the Interpretation Act, R.S.C. 1985, c. I-23 reads: (1) Where an enactment creates an offence, (a) the offence is deemed to be an indictable offence if the enactment provides that the offender may be prosecuted for the offence by indictment. (emphasis added) In Re Monkman and The Queen (1975), 26 C.C.C. (2d) 73 (Man. C.A.), Freedman, C.J.M. dealt with the offence of criminal negligence in the operation of motor vehicle. Section 233(1) of the Criminal Code read: 233(1) Every one who is criminally negligent in the operation of motor vehicle is guilty of (a)an indictable offence and is liable to imprisonment for five years, or (b)an offence punishable on summary conviction. Although s. 233(1) did not state that the offence "may" be prosecuted by indictment Mr. Justice Freedman held that it fell within s. 27(1)(a) of the Interpretation Act, R.S.C. 1970, c. I-23, which section is identical to s. 34(1)(a). He held that it was an indictable offence and stated at p. 78: We must keep in mind the distinction between the nature of an offence and the nature of the proceedings to enforce an offence. The offence of criminal negligence in the operation of motor vehicle may indeed be prosecuted by way of summary conviction. But until the Crown should elect to proceed by that alternative route something that has not here occurred and indeed may never occur there is no ground for even thinking of the offence or the proceedings as other than indictable. In R. v. Huff (1979), 1979 ABCA 234 (CanLII), 50 C.C.C. (2d) 324 (Alta. C.A.) the court held that hybrid offences are deemed to be indictable until the Crown elects otherwise. See also Regina v. Toor (1973), 1973 CanLII 1376 (BC SC), 11 C.C.C. (2d) 312 (B.C.S.C.). find that the offence of theft not exceeding $5,000.00 "may" be prosecuted by way of summary conviction but until the Crown elects to proceed in that manner the offence is deemed to be indictable. Accordingly, the first question posed in R. v. Landry is answered in the affirmative. find that Cst. Jones believed on reasonable and probable grounds that the accused had committed the offence in question. Thus the second question posed in R. v. Landry is answered in the affirmative. Sgt. Bell saw the two accused enter the four-plex. Upon enquiry he learned that they had entered apartment "B". find that he had reasonable and probable grounds for the belief that the persons sought were within the premises. The third question posed in R. v. Landry is answered in the affirmative. accept the evidence of Cst. Jones and Sgt. Bell that before entering they knocked on the door and announced their presence as "police". Although the evidence of Cst. Jones is somewhat contradictory on the issue of whether anyone inside the premises said "come in" in response to the knock on the door, Sgt. Bell testified that they were admitted into the apartment and the lady in the premises reacted favourably to their presence. find that the officers made proper announcement before entering the premises. The fourth question posed in R. v. Landry is answered in the affirmative. I conclude the officers were lawfully present in thepremises when Sgt. Bell inadvertently found the knapsack andits contents which were in plain view. He reasonably believedthat the knapsack and the contents were evidence of a crime. Therefore it was neither unreasonable nor unlawful for him toseize these items. In so concluding have referred to number of decisions including R. v. Grenier (1991), 65 C.C.C. (3d) 76 (Que. C.A.), and R. v. Nielsen (1988), 43 C.C.C. (3d) 548 (Sask. C.A.). I find that the search was authorized by law and themanner in which it was carried out was reasonable. In R. v. Silveira, 1995 CanLII 89 (SCC), [1995] S.C.R. 297, case dealing with warrantless search, Mr. Justice Cory delivered the majority decision. At p. 366 there is the following: Factors to be Taken into Account in Consideration of s. 24(2) of the Charter In Collins, supra, at p. 284 and p. 288, Lamer J. (as he then was) set out the three primary factors which should guide the consideration of Court in determining whether evidence should be excluded under s. 24(2) of the Charter. These are: (a) does the admission of the evidence affect the fairness of the trial, (b) how serious was the Charter breach, and (c) what would be the effect on the system's repute of excluding the evidence. Even if the accused's rights under s. 8 of theCharter had been violated this would not be a proper case toexclude the evidence under s. 24(2) of the Charter. Thefairness of the trial will not be affected by the admission ofthe evidence. The manner in which the search was conductedwas neither abusive nor excessive. On the contrary, theevidence was in plain view and was found inadvertently. The evidence is real and tangible. The admission of this evidencewill not have an adverse effect upon the reputation of theadministration of justice. The application to exclude evidence is denied.

Following the 'not guilty' pleas, both accused applied for an order pursuant to s. 24(2) of the Charter of Rights and Freedoms for exclusion of evidence consisting of a knapsack and its contents on the grounds that the knapsack and its contents were obtained in contravention of their rights to be secure from unreasonable search and seizure pursuant to s.8 of the Charter. HELD: The application to exclude evidence is denied. 1)The officers were lawfully present in the premises when Sergeant Bell inadvertently found the knapsack and its contents which were in plain view. He reasonably believed that the knapsack and the contents were evidence of a crime. Therefore it was neither unreasonable nor unlawful for him to seize these items. The search was authorized by law and the manner in which it was carried out was reasonable. 2)Even if the accused's rights under s.8 of the Charter had been violated this would not be a proper case to exclude the evidence under s.24(2) of the Charter. The fairness of the trial will not be affected by the admission of the evidence. The manner in which the search was conducted was neither abusive nor excessive. The evidence was in plain view and was found inadvertently. The admission of this evidence will not have an adverse effect upon the reputation of the administration of justice.

d_1995canlii6019.txt

Editors’ note: Corrigendum released December 3, 2009. Original judgment has been corrected, with text of corrigendum appended. QUEEN’S BENCH FOR SASKATCHEWAN Date: 2009 10 06 Citation: 2009 SKQB 394 Docket: Q.B. No. 365 of 2000 Judicial Centre: Saskatoon BETWEEN: SYLVIA SNIDER (now Sylvia Schira) and EDWARD KARPINSKI, VERL KARPINSKI, CECILIA MUI, 100% REALTY ASSOCIATES LTD., operating as RE/MAX SASKATOON, MARIO JACOBUCCI AND TREVI HOLDINGS LTD., operating as MARIO JACOBUCCI REALTY Counsel: G. D. Dufour for the plaintiff R. Borden for the defendants, Edward Karpinski, Verl Karpinski, Mario Jacobucci and Trevi Holdings Ltd. G. Thompson and K. Smith for the defendants Cecilia Mui and 100% Realty Associates Ltd. JUDGMENT M-E. WRIGHT J. October 6, 2009 1) In 1998 the plaintiff, Sylvia Snider, now Sylvia Schira, decided to purchase home. To assist her she engaged the services of the defendant, Cecilia Mui, realtor associated with the defendant, 100% Realty Associates Ltd., operating as RE/MAX Saskatoon. After lengthy search house was purchased the following year. It was owned by the defendants, Edward and Verl Karpinski. Their realtor was the defendant, Mario Jacobucci, the owner of the last defendant, Trevi Holdings Ltd. 2) The house did not meet Ms. Schira’s expectations. She now sues the defendants seeking recovery of damages for alleged latent defects in the house. She says that Ms. Mui and RE/MAX Saskatoon fell below the standard of care required of a realtor representing the purchaser of a residential property. She also says that Ms. Mui was negligent in misrepresenting certain facts and breached the fiduciary duty expected of her. Mr. and Mrs. Karpinski, according to Ms. Schira, similarly misrepresented facts to her, negligently and fraudulently, both in information given to her which induced her, in part, to purchase the home, and in answers that they gave in a Property Condition Disclosure Statement (PCDS) which formed a condition of the contract for sale. They failed to tell her the home been moved over 300 kilometres from its original building site. In so doing, it is alleged by Ms. Schira that they breached the terms of the contract between them. 3) Ms. Schira also says that Mr. Jacobucci and his company are liable to her in damages, both in negligence and as parties to the misrepresentations made by Mr. and Mrs. Karpinski. Prior to trial, Mr. Jacobucci and Trevi Holdings Ltd. entered into confidential agreement with Ms. Schira. Although they remained parties to the action, they did not participate, except to the extent that Mr. Jacobucci was called as witness on behalf of Mr. and Mrs. Karpinski. 4) Special and general damages, including damages based upon mental and emotional distress, are claimed against all defendants. Ms. Schira also claims aggravated damages against all defendants and punitive damages against Mr. and Mrs. Karpinski and against Mr. Jacobucci and Trevi Holdings Ltd., asserting that their acts and omissions exacerbated her distress. 5) All allegations are denied by the defendants. In the event that any defects existed in the house, the defendants say that they were patent, and that the law of caveat emptor applies. They take issue as well with the quantum of damages claimed by Ms. Schira saying that many of the items claimed by her are not related to any alleged damage. 6) The trial took place over 22 days, spanning several years and included testimony from 14 witnesses, several of whom were qualified as experts, many hours of video tapes, and numerous exhibits. I. The Evidence 7) Because of my findings on credibility, it is necessary to set out the testimony of each of the parties and certain of their witnesses in some considerable detail. 1. The Plaintiff’s Case (a) Sylvia Schira 8) When Ms. Schira embarked upon her search for new house she had been divorced for several years and was living in rental accommodation owned by her sister. Her means were limited. She was not employed and while she had savings of some $400,000 from property settlement with her former husband, Victor Snider, her spousal support was set to terminate within two years. She was single and knew that she needed “good” home one that would not require extensive renovations or repairs one that she could simply move into without concern. 9) Ms. Schira connected with Ms. Mui through their church. She explained her needs, which at the time were relatively simple. She wanted home in “move-in” condition in good location, with nice kitchen, lots of windows and two or three bedrooms. Ms. Schira wanted to spend between $100,000 and $125,000 an expectation that Ms. Mui knew was unrealistic. She told this to Ms. Schira who then decided that she could go as high as $150,000. 10) Ms. Mui and Ms. Schira spent considerable time together. They viewed perhaps as many as thirty homes within the city, an experience that was undoubtedly frustrating for Ms. Mui. Ms. Schira was very particular. Only one offer was made and was not accepted. The search for suitable home then expanded to acreages in the neighbouring environs. 11) Ms. Schira first became aware of the country home being offered for sale by Mr. and Mrs. Karpinski in the fall of 1998. Ms. Mui provided her with the information on the property after an initial inquiry made by Ms. Schira. The brochure advertising the home touted it to be of quality construction and energy efficient. It was located in an idyllic rural setting. Ms. Schira was captivated, but knew that it was beyond her price range. It was listed for sale at $299,000. The brochure did not indicate that the home had been moved. 12) The house, located in the Rural Municipality of Corman Park, was the “dream home” of Mr. and Mrs. Karpinski. They had personally selected the plans for construction of the house and had overseen its erection in 1987 in the Rural Municipality of Gary. They tastefully decorated it and made it into lovely and attractive home. It was moved to its present location in 1995. Unfortunately, due to financial setbacks, Mr. and Mrs. Karpinski needed to sell the property, something which turned out to be more difficult than anticipated. It was first listed for sale in 1998, first with realtor not party to this action, and then later the same year with Mr. Jacobucci. When it did not sell after several months, it was taken off the market until 1999 when Mr. Jacobucci relisted it. 13) Ms. Schira decided she wanted to view the property, even though she knew it was not within her means. She simply wanted to see what property of this value would look like. Along with one of her daughters and Ms. Mui, Ms. Schira first saw the property in November, 1998. It was only cursory viewing during which time, at the request of Ms. Schira, Mr. Snider, her former husband, joined them for approximately 20 minutes. In the short time she was there, Ms. Schira fell in love with the house. It appeared perfect the decor was wonderful there was room for her daughters and Mr. Snider to board their horses, an unfinished loft where one of her adult children could possibly live, and an outdoor building where she could have music studio. On this first viewing of the property, she and Ms. Mui had only quick look at the other details of the home. Mr. Snider, who is journeyman plumber, had peek into the attic and crawl space. While captivated, Ms. Schira still understood that she could not realistically afford to buy the acreage, an opinion that her former husband concurred with. 14) According to Ms. Schira, the next time she viewed the property was approximately seven months later on June 19, 1999. She still had not found home to her liking and asked Ms. Mui to take her back to the Karpinski acreage when she learned it had come back on the market. They spent about an hour there on that occasion and were met once again by Mr. Snider. He stuck his head into the crawl space and the attic, which he said appeared to be dry. Ms. Mui commented on the large rooms, vaulted ceilings and the decor. She pointed out crack in the foundation. Otherwise, Ms. Schira noticed no defects of any concern to her. Neither Mr. nor Mrs. Karpinski were present. 15) After this viewing, Ms. Schira accompanied Ms. Mui to her office. In the car, Ms. Mui asked if Ms. Schira wanted to have home inspection done. Ms. Schira was uncertain, as she still did not know whether she intended to make an offer on the property. This was the first time that Ms. Schira heard mention of home inspection. There was no explanation offered about what home inspection would entail, other than it would be at Ms. Schira’s expense. When they reached Ms. Mui’s office, Ms. Mui told her that there was an offer on the property, but that it was subject to financing. Before making her own offer, Ms. Schira said she wanted to learn several more things, including whether or not certain chattels remained, and how close the abutting highway would come to the house if it was widened in the future. 16) In response to these inquiries, Ms. Mui phoned the Karpinski residence. Mr. Karpinski invited them to return to the property and have closer look at the proximity of the road. They did so in the late afternoon. Mr. Snider joined them. Upon their arrival, Mr. Karpinski was waiting near the entrance to the acreage with measuring tape and an offer to assist with any required measurements. He and Mr. Snider did some measuring and had conversation about the fence. Ms. Schira overheard discussion between them about the roof. She heard Mr. Karpinski tell Mr. Snider that nothing needed to be done to the roof, and that it would be good for 50 years. Ms. Schira remained at the property for between 30 and 60 minutes. She did not go into the house. Ms. Mui then drove her home. 17) That evening, after speaking to Mr. Snider and considering her options, Ms. Schira decided she would proceed to purchase the acreage. Ms. Mui came to her house and the first of two offers was completed. Ms. Schira offered to purchase the property for $265,000 with possession date of August 6, 1999. The only conditions to attach to the offer were that it was subject to the approval of satisfactory PCDS by June 21, 1999 and that any existing mineral rights be included. Ms. Mui explained to Ms. Schira that PCDS would reveal to them any conditions of the property that were not readily apparent. There was no discussion of home inspection. The offer was open until midnight that day. 18) The offer was rejected by Mr. and Mrs. Karpinski. Ms. Mui however returned with counter-offer from them at $285,000, open until noon the next day. All other terms remained the same. After thinking about it for several hours, Ms. Schira phoned Ms. Mui to tell her that it was acceptable, provided that the riding lawn mower was included. Late that night, Ms. Schira signed second offer. She was prepared to pay $275,000 for the property, and separately offered to buy the mower for an additional $10,000. The only change from the original conditions was that the PCDS would be subject to approval by June 22, 1999, and this time Ms. Mui remembered to add that the PCDS would be incorporated into the agreement. Again, there was no discussion about home inspection. The offers were open until June 20, 1999 at noon, and were accepted by Mr. and Mrs. Karpinski the next morning. 19) On June 22, 1999, Ms. Mui dropped off the PCDS in Ms. Schira’s mailbox. When Ms. Schira found it, she asked Mr. Snider to review it with her, which they did that evening. She was satisfied with the statement, but at Mr. Snider’s suggestion, phoned Ms. Mui to request copy of the building permit. This was to ensure, according to Ms. Schira, that the house was built “to code” and that all necessary permits were in place. Ms. Mui called back late that night to tell Ms. Schira that Mr. and Mrs. Karpinski would check into the permit the next day. The Notice to Remove Conditions was not signed pending that information. 20) The following day, June 23, 1999, Ms. Mui phoned Ms. Schira and told her that she had just learned that the house had been moved to its present site, and that because of this, she was uncertain that she could obtain permit. Ms. Schira was shocked, and after again talking to Mr. Snider, insisted that building permit be obtained. She was reassured later that day when Ms. Mui called again to say that the R.M. of Corman Park had issued permit and that all was “O.K.”. She had obtained this information over the phone from someone employed by the rural municipality. It was not yet in writing since the municipality was experiencing power outage, but Ms. Mui was expecting fax as soon as the problem was rectified. She would then have the permit. In neither of these two conversations was there any discussion about when the house had been moved, where it had been moved from, whether the rural municipality would have inspected the house, nor was there any discussion about the advisability of home inspection. 21) On the afternoon of that day, Ms. Schira, with some hesitation, executed the Notice to Remove Conditions. She remained concerned that she still did not yet have enough information and told this to Ms. Mui. Ms. Mui advised her she could rely on the PCDS, that she had the permit number, that they were already late in removing the conditions, that they needed to “sign off”, and if they did not remove the conditions they would have to “start all over again.” According to Ms. Mui, there was nothing to worry about. Ms. Mui did not go through the property disclosure statement with Ms. Schira in any detail. She said that it “looked good”. Ms. Schira wanted to know if she could rely on the PCDS. Ms. Mui told her that she could. There was no discussion about home inspection. There was also no discussion about extending the deadline to remove the conditions so that further investigations into the condition of the house could be carried out. 22) On June 24, 1999, the day after the conditions were removed, Ms. Schira received from Ms. Mui copy of letter of the same date provided by the Rural Municipality of Corman Park confirming the amount of the taxes for the previous year, and that the property was assessed based upon single family dwelling, attached garage and shed being on the site. The letter also indicated that “[p]ermit #63/95 was issued July 13, 1995 for residence to be moved on to the above mentioned.” Ms. Mui’s accompanying note confirmed the foregoing and included the statement that the “[b]uilding is legal, has permit #63-95 issued in 1995.” Ms. Mui did not enclose copy of the permit. Ms. Mui never provided Ms. Schira with copy of the permit. 23) Ms. Schira was at the acreage one more time before she took possession, she says at the invitation of Mr. Karpinski. He had indicated that he was interested in selling quadrunner. It was also an opportunity to learn from him how to operate the mower and maintain the septic tank. She and Mr. Snider went out on July evening at about 7:30 p.m. While Mr. Snider was outside with Mr. Karpinski, Ms. Schira went into the house with Mrs. Karpinski, but not beyond the kitchen area. 24) On July 28, 1999, Ms. Schira moved into her new home. Apart from piece of eavestroughing lying on the back deck, and the general state of cleanliness, Ms. Schira noticed nothing out of the ordinary. That night, however, she was awakened by the sound of cracking noises which seemed to her be coming from the attic of the house. They were irregular and of varying intensity. Within the first few weeks of her residency, Ms. Schira discovered other problems. There was bulge in the lower part of the wall in her bedroom. In early August, 1999 large crack developed in the living room, the first of several. Window panes were cracked or missing. space between the house and the foundation allowed crickets to enter. And, after the first big rain, the skylight between the kitchen and the back door leaked badly. Ms. Schira found shakes that had blown off her roof. 25) Ms. Schira contacted Ms. Mui to tell her there was moisture pocket in the master bedroom, that the skylight was leaking and that there were insects in the house. Ms. Mui first came to the house with her husband, and then later with Mr. Jacobucci. According to Ms. Schira, Mr. Jacobucci told her that she had valid complaints and that he would be in touch with Mr. Karpinski. It would have to wait, however, because Mr. Karpinski was busy with harvest. 26) About month later, Mr. Karpinski did come to the acreage. He caulked under the door in the back entrance. He went up onto the roof to caulk around the skylight. He offered to replace broken handles on bedroom windows. 27) Also in the fall of 1999, Ms. Schira began to engage contractors to either carry out work at the house, or to assess the cause and extent of the problems that she was encountering. Although she did not plan to redecorate or replace wallpaper, she hired painter in September to paint certain beams, the sun room and spare bedroom. It was the painter, Diane Pawalenko, who raised the alarm with Ms. Schira about other cracks, moisture pockets, sink holes, nail and screw pops, and blistering. She pointed out to Ms. Schira an area in the hallway leading to the garage where screw pops had been camouflaged with new paint. Some holes had been filled. It was Ms. Pawalenko’s suggestion that Ms. Schira contact roofer to determine if problems existed with the roof. 28) Over the next several months, Ms. Schira had the roof inspected by several roofers. She accompanied one of them onto the roof to cover the still leaking skylight with plastic. It was then that she discovered staples surrounding the skylight, up the sides, and across the top. The roofers who looked at the roof advised Ms. Schira that the shingles were rotten and to delay any work in the interior of the house until the roof was fixed. Ms. Schira also hired an architect in 2000 to provide an opinion about the problems with her house. It was this architect, Darryl Epp, who first provided Ms. Schira with copy of the building permit that had been requested of Ms. Mui. It was only then that Ms. Schira realized that the building permit issued by the Rural Municipality of Corman Park was one only granting Mr. and Mrs. Karpinski permission to move their residence onto the site. At the same time Ms. Schira learned from Mr. Epp that prior to 2000, the rural municipality did not do any inspections of moved or newly constructed residences. This was clear from reading of the building permit. 29) As cracks continued to appear in areas not covered by wallpaper, Ms. Schira’s concerns about the state of her home intensified. She became more aggressive in her own investigation of the interior of the house. She started to run her hands over the papered walls and discovered cracks underneath. In certain areas where she removed the wallpaper, the gyprock was discolored or crumbling. Some areas had been patched with polyfill and in rooms including the kitchen, living room and master bedroom, the wallpaper had been patched where cracks existed. The patches were cut to match the pattern of the wallpaper. Above the doorway leading from the hallway to the sun room, Ms. Schira found steel reinforcement under the wallpaper. It had been installed over the original wallpaper. 30) Ms. Schira recounted in great detail the extent of the damage to her home that became apparent to her only after she took possession of the property in July, 1999. She began to document her observations in videos and DVD’s, but not until early 2002. The problems were numerous and included cracking, nail pops and sink holes in virtually every room of the house. The kitchen and bathroom were improperly vented into the attic, and the dryer into the crawl space. The vapour barrier in the crawl space was not continuous and was improperly installed. “Roughed in” plumbing did not exist in the unfinished bathroom and the pine shakes on the roof were rotten. The skylight continued to leak and water leaked through the roof into the attic. Water entered through dormer window with rotting casing. 31) Over several years, Ms. Schira started to repair her home. Some work was contracted out, but she and friends performed, according to Ms. Schira, thousands of hours of unpaid labour, including stripping wallpaper, repairing cracks, sanding and painting. The skylight was removed and reinstalled, the pine shakes were replaced with asphalt shingles, and make-shift ridge caps were installed. The attic was equipped with proper gable and soffit venting, mold removed, and insulation replaced. Segments of eavestroughing were completed. The foundation was repaired and the outside deck reinforced. According to Ms. Schira, work still remained to be done at the time of trial. 32) Ms. Schira moved away from the house in 2004 to continue her education, but remains the owner. She testified that the house had “stolen” years of her life. She had thought she was buying good, quality home. Instead, she said that she spent six years living “continuous and disastrous nightmare” not even being able to completely unpack because of the work being undertaken in the house. For several years her own labour and dealing with trades people consumed most of her waking hours. Her relationship with her daughters, one of whom she hoped would be living with her, became strained. Ms. Schira says she suffered emotionally far beyond the mere time and financial expenditures that were required of her. 33) According to Ms. Schira, had she known about all the problems she would encounter, she would not have bought the acreage. She would have “run the other way”. While it was her decision to buy the house, she relied on Ms. Mui to help her obtain the quality home she had been seeking. She accepted Ms. Mui’s assurances that there was building permit issued by the rural municipality and from that assumed that the house would have been inspected after it had been moved. She relied on the terms of the PCDS and on Ms. Mui’s assurances that she could do so. (b) Victor Snider 34) Mr. Snider testified on behalf of Ms. Schira. Although divorced for many years, they remain friends. This was Mr. Snider’s motivation in helping Ms. Schira find suitable home. That along with the fact that they have three children together. Mr. Snider has been in the plumbing and heating business for more than 35 years, but apart from that has no particular expertise or knowledge about construction. Mr. Snider’s recollection of the events leading up to Ms. Schira’s decision to purchase the property was largely confirmatory of the evidence given by Ms. Schira. 35) The first time that Mr. Snider viewed the Karpinski property was in the fall of 1998. He was there for only 20 or 30 minutes at the request of Ms. Schira. One of his daughters and Ms. Mui were also present. As far as he was concerned, the property was too expensive for Ms. Schira to afford, and he told her so. 36) The following spring, Ms. Schira contacted Mr. Snider again. She was still interested in the house and as it was heated by wood, she wanted to ensure that there was also gas line onto the property. She asked Mr. Snider to find this out, so at her request he went to the acreage and spoke to Mrs. Karpinski. He was there for approximately 10 minutes and was invited into the home. According to Mr. Snider, he looked at nothing in particular, since he was not the one buying the property. 37) The third occasion that Mr. Snider visited the acreage was on June 19, 1999. Again, he attended at the request of Ms. Schira. Ms. Mui was also present. He had small flash light with him and had “glance” into the attic to see if it was dry, and did the same with the crawl space. Then he, Ms. Schira and Ms. Mui toured the surrounding land in his truck, looking at, among other things, the fencing. Later that same day, Mr. Snider returned once more to the acreage to meet Ms. Schira and Ms. Mui. This time it was to check the fence line. Mr. Karpinski was waiting for them near the property line with tape measure to take any requested measurements. According to Mr. Snider, he and Mr. Karpinski discussed the roof. Mr. Snider wanted to know if the shingles would require treatment. He was told by Mr. Karpinski that would not be necessary the shingles were good and would last for 50 years. 38) Mr. Snider also confirmed that he stopped by Ms. Schira’s home to review the PCDS with her on June 22, 1999. Although his memory was somewhat vague on all the details of that meeting, he did recall suggesting that she needed to know that the chimney was approved for wood fireplace. He also suggested that Ms. Schira get copy of the building permit because the property was rural acreage. He wanted to ensure that the septic tank and water source were the proper distances apart. He, as well as Ms. Schira, spoke to Ms. Mui about the permit that night. He asked Ms. Mui to have the rural municipality fax copy of the building permit the next morning. At this point Mr. Snider did not know that the house had been moved, nor was he aware that the rural municipality did not at that time do inspections of permitted work. He thought the building permit would tell Ms. Schira that the construction was done to Code, that all necessary permits had been taken out and that inspections had been completed. 39) The next time that Mr. Snider went to the Karpinski property was during the month of July. He went to clear fence line and to start erecting new fence. Mr. Snider also confirmed that Mr. Karpinski later telephoned to indicate he was interested in selling quadrunner and offered to show Mr. Snider how to run the mower and operate the mechanical systems. Mr. Snider went to the acreage that night, along with Ms. Schira. Mr. Snider was clear that he did not conduct any “inspection” of the property with Mr. Karpinski that evening. In particular, he did not go into either the attic or crawl space. The only time that he peered into those spaces was prior to any offer to purchase being made and when Mr. Karpinski was not present. While with Mr. Karpiniski in July, Mr. Snider did notice ridge caps in the garage which Mr. Karpinski said he would be putting up. He also saw piece of eavetrough that needed to be reinstalled. 40) Apart from his telephone conversation with Ms. Mui on June 22, 1999 about the building permit, Mr. Snider did not recall generally having any discussions with Ms. Mui about the house. He specifically did not recall hearing any mention by her of the prospect, or advisability, of having home inspection completed. Mr. Snider was not aware in 1999 that home inspection services were available. 41) After Ms. Schira took possession of the property, Mr. Snider discovered that the roughed in plumbing for the additional bathroom and wet bar was not connected to any water lines or to the septic tank. He also discovered that the bathroom was vented into the attic which led him to go into the attic for the first time. There he found moisture damage and mold. 42) Mr. Loraas inspected the roof and attic of the house in the fall of 1999 at the request of Ms. Schira. He was asked to determine the cause of the leaking and prepare report. At the time of trial, Mr. Loraas had been roofer for 45 years. 43) Mr. Loraas looked at the entire roof and found it to be in similar condition throughout. In any area where he lifted shingle, he found no tar paper. He found rotted shakes, some of which could be moved with mere finger pressure, and many of which were cracked to such an extent that they would permit water to permeate the underlying joints and decking. He also found misplaced shakes due to incorrect installation. He discovered sealant that had been applied down the center of valleys in areas where the shakes were rotted. In one spot, Mr. Loraas found two different sealants that had been applied at different times. Some of the sealant was already flaking, indicating to Mr. Loraas that it had been applied at least several years earlier. According to Mr. Loraas, sealant is applied to remedy leaks. On the eastern side of the house, Mr. Loraas found total lack of ridge capping to protect the underlying area from seepage. With no tar paper, there was nothing to prevent water from seeping into the attic. 44) In the attic, Mr. Loraas found mold in the area where the slope of the roof met the rafter. The bathroom and kitchen exhaust fans were vented into the attic. He observed areas where frost and condensation had accumulated over the mold. 45) Mr. Loraas’ evidence and observations, recorded by photographs taken by him, were largely unchallenged in cross-examination by any of the defendants. (d) Darryl Epp 46) Darryl Epp is the architect retained by Ms. Schira in 2000 to provide an opinion regarding both the cause of her problems and the best way to remedy them. Mr. Epp is registered architect. He was qualified as an expert to give opinion evidence in house construction, and particularly the proper installation of shake shingles, the effect on residence of being moved from one location to another, the cause and effect of moisture in residential homes and, with some limitations, the cause and effect of mold in residential buildings. He was also qualified as an expert on compliance with the provisions of the National Building Code. 47) At the request of Ms. Schira, Mr. Epp attended at her home in November, 2000. He was asked to investigate the extent and source of the problems that she was experiencing with the house, and to try to ascertain the length of time that the problems had existed. He did visual inspection of the interior and exterior of the property, including the attic and crawl space. He did not go onto the roof, relying instead on the report and photographs taken by Mr. Loraas, and earlier reports provided by other roofers. 48) Regarding the roof, it was Mr. Epp’s opinion, and conclusion, that the pine shakes needed to be replaced. There was significant rot caused, according to Mr. Epp, by improper installation. This improper installation was readily apparent to Mr. Epp from reviewing the photographs taken by Mr. Loraas. There were large gaps between some shingles, and the offset of the shingles was weak, insufficient to prevent water from leaking down the cracks and entering the substrata of the roof. Other photographs confirmed to Mr. Epp the absence of valley flashing in certain areas. This deficiency alone could lead to rotting of shingles from water damage and resulting susceptibility to fungus. 49) Of significance to Mr. Epp was the lack of ridge cap on the eastern side of the house. Even had there been an underlay of tar paper, the absence of the ridge cap would still allow the paper to become saturated over time. Holes would develop, allowing water into the house. 50) Mr. Epp could also observe the application of sealant, or caulking, in certain locations photographed by Mr. Loraas. In one spot, there were two types of sealant that Mr. Epp could see, one being tar, and the other being something else. In his opinion, this indicated attempts to repair leakage and water damage at two different times, and an obvious attempt to correct problems with the roof. It was an endeavour to put flashing on the top of the shingles, rather than on the bottom, where it should have properly been installed. Further, it was Mr. Epp’s opinion that these remedial actions were useless and would not resolve the fundamental problems with the roof. 51) It came as no surprise to Mr. Epp that the roof leaked and allowed water into the house. Had the pine shakes been properly installed, he expected that they would have lasted 20 to 30 years. In this case, however, improperly installed, they had rotted, had caused interior damage, and needed to be replaced. The fact that the sheeting under the shingles appeared to be in relatively good condition did not detract from Mr. Epp’s conclusion that the roof was leaking. With properly installed shingles or shakes, the slope of the roof was sufficient to prevent water from accumulating in sufficient amounts, or for sufficient lengths of time, which would otherwise allow fungus or mold to grow and cause rotting. In this case, however, the poor installation permitted the water to run through the seams into the house, and down the outside of the house. Significant caulking around the skylight was evidence to Mr. Epp that leaking had occurred in that area as well. 52) Apart from the roof, Mr. Epp identified problems with the interior of Ms. Schira’s home. The venting was not adequate and in several cases was inappropriate, resulting in interior moisture damage over and above that caused by the roof. The inadequacy of the external venting was compounded by the improper venting of the dryer, bathroom, and kitchen, whether into the attic or into the crawl space. The venting of the dryer into the crawl space over number of years would alone contribute to significant negative effects on the house, and particularly so in this case since the vapour barrier in the crawl space was not continuous and was not properly sealed. 53) In the attic, Mr. Epp found signs of mold. Again, this was most likely caused by improper venting into that area for many years. The extent and condition of the mold was such that Mr. Epp was able to conclude that the problem had originated prior to Ms. Schira occupying the home. The excessive moisture and humidity in the attic not only created the mold problem, but also caused damage to the interior of the house. In cold weather, and during the heating season, the moisture would turn to frost which would then accumulate during the winter months. When the frost melted, it would find its way into the house, causing deformation in the drywall and creating paint blisters. This blistering was observed by both Ms. Schira and her painter. Mr. Epp observed gyprock that was dry and brittle, condition also caused by water damage. 54) The fact that the house had been moved was also of concern to Mr. Epp. When house is lifted, its entire structural integrity is sent into disarray. Cracks, particularly those running from the tops of windows to the corners of room are common. If the house is properly installed and well cemented to its new foundation, the cracking will subside relatively quickly. If, however, the house is not well placed on the foundation, or is improperly secured, the cracking will continue. For this reason, it was Mr. Epp’s opinion that if Ms. Schira was continuing to experience cracking in the house, several years after the move, it was because the house was not properly installed on the foundation. Mr. Epp could observed cracks in the house, some of which had been concealed. 55) Nail pops are another common occurrence after house is moved, caused by the structure of the house shifting to greater extent than the drywall. When Mr. Epp viewed Ms. Schira’s property, certain repairs were already underway. Some of the wallpaper had been stripped from the walls. He could see many nail pops. Again, according to Mr. Epp, if the nail pops were continuing to happen after Ms. Schira took possession of the house, it was due to the house continuing to shift on its new foundation. 56) Mr. Epp’s main concerns about this house were the roof and the excessive ventilation that had occurred into the attic. He was of the opinion that the pine shakes had to be replaced, and that the mold in the attic had to be removed. The ventilation in the attic also had to be improved through additional soffit vents. The vapour barrier in the crawl space needed improvement. Mr. Epp was not of the opinion that this home was of “quality construction”. In his view, it did not even approach quality construction. During his inspection of the home, Mr. Epp observed many instances of non-compliance with the provisions of the National Building Code, whether the one in effect at the time the house was constructed, or at the time it was moved. Had the rural municipality undertaken inspections in 1999, the foundation would have been examined during construction and an inspection would have been done upon completion to determine that the residence was fit for occupancy. Code violations would have also been considered. (e) Robin Friesen 57) Mr. Robin Friesen is realtor and broker who was qualified, with the consent of the parties, to give expert evidence on the standard of care expected of realtors acting for purchasers and vendors in the late 1990’s and, in particular, in circumstances where the property is located in rural municipality. It was his opinion that realtor, acting for either purchaser or vendor, would in those circumstances have an obligation to: 1. do preliminary background checks with the rural municipality including obtaining tax information, legal descriptions, the site plan if house was situated on the property, and ascertain whether or not any special levies had been assessed; and 2. determine if proper permits had been obtained for any structures, including permits for renovations, and electrical and plumbing work. 58) The realtor acting for purchaser would also have an obligation to assist the purchaser, when viewing the home, in ascertaining whether there were any latent or patent defects. With respect to this latter obligation, Mr. Friesen indicated that realtor would be expected to exercise ordinary care in pointing out patent defects to purchaser those things that are obvious such as cracked driveway. They should also be observant for signs of moisture and, to that extent, examine the condition of the windows and walls. realtor would not be expected to move furniture to look for defects or deficiencies. 59) Other defects, latent in that they are not readily apparent, and may or not be known only to the vendor, require the assistance of home inspector. According to Mr. Friesen, home inspections had started to become important by 1995 and were much more common in 1999, and satisfactory inspection was regularly included as condition in an offer to purchase. By that time, prudent realtor, acting for purchaser, and with any concerns about foundation or moisture problems, would recommend an inspection. The inspection would provide the prospective purchaser with complete overview of the home including the exterior walls, the roof, the condition of the plumbing and electrical systems, as well as the foundation. In Mr. Friesen’s opinion, in 1999, purchaser’s realtor should have been telling his or her client about the benefits of home inspection. If there were any indications of moisture damage, the realtor should encourage further investigation, and if the realtor knew that house had been moved, that would be reason to forcibly recommend home inspection. Another reason to strongly recommend such an inspection would be in circumstances where the realtor knew that rural municipality did not require building inspections. 60) As to the duty to disclose, Mr. Friesen indicated that any information that realtor knows about property, that may influence the decision to purchase, must be disclosed. This duty extends to both the realtor for the purchaser and to the realtor for the vendor. The realtor is bound by the same disclosure obligation as the vendor if aware of latent defect. It is incumbent upon the purchaser’s agent to consult with the listing agent about any special characteristics of house, and it is incumbent upon the listing agent to reveal those characteristics. In this case, that would include the obligation to disclose that the house had been moved, whether the house had been constructed as “ready-to-move” or otherwise. Mr. Friesen said that it would be important to know because of different structural and building code considerations. 61) PCDS’s were required in 1999. Even problems that have been corrected should be disclosed. If there are no disclosed problems, then purchaser and his or her agent should be able to rely on the statement. Finally, Mr. Friesen indicated that it is not the responsibility of realtor to check compliance with building codes. If the property is inhabited, it is reasonable for the realtor to conclude that there is compliance with the relevant code. Realtors will not check into this aspect of property unless specifically asked. He has never been asked. 2. The Defendants’ Case (a) Verl Karpinski 62) Mrs. Karpinski’s evidence began during the first segment of the trial. According to her, there were no concerns with the house while she and her family were living in the Rural Municipality of Gary. Only after the move to the Rural Municipality of Corman Park did she notice frost build up on one of the windows in the master bedroom. The move, and the rain encountered en route, also caused drywall damage to the interior of the garage which was unprotected with no floor and no doors. Part of the ceiling collapsed. Inside the house several cracks appeared in the bedroom and above the doors in the kitchen and living room. drywaller, James Garinger, was hired to repair the damage and to also stipple the ceilings in the kitchen and sun room. After these repairs were completed, Mrs. Karpinski patched the affected areas with matching wallpaper. 63) Apart from the foregoing, Mrs. Karpinski could identify no problems with the home. There was no leaking, no moisture problems, and no other cracking. When the house was moved, it was severed to detach the garage and the skylight was removed. After it was placed on its foundation in the new location, the house was reattached to the garage, new shake shingles were installed along the line of attachment, the skylight was reinstalled and caulked, and the deck was rebuilt. Stairs that had been detached were repositioned in different location. This work was done by carpenter and, according to Mrs. Karpinski, there was no other repair work done to the house between then and the time it was sold to Ms. Schira. Mrs. Karpinski denied that either she or Mr. Karpinski concealed any defects in their home. 64) As to the sealant on the roof observed by Mr. Loraas, Mrs. Karpinski said the roof did not leak, she had never been on the roof, and to her knowledge, Mr. Karpinski had only been on the roof once to assist with the reinstallation of the skylight. The staples observed by Ms. Schira in the area of the skylight were left behind after the move when, according to Mrs. Karpinski, large waterproof tarps were attached to the house as protection during transport. There was no leaking from the roof, and Mrs. Karpinski initially said she knew nothing about ridge caps. This evidence, however, changed number of weeks later when the trial resumed after an adjournment. During cross-examination, Mrs. Karpinski was able to say that the ridge caps were simply decorative. Pointing to various photographs of the roof, she testified that metal cap had been installed over the dormers where the ridge caps were missing, and then covered with black jack. 65) The numerous patches in the wallpaper identified by Ms. Schira were, according to Mrs. Karpinski, fabrication. Mrs. Karpinski suggested that the chalk marks shown in Ms. Schira’s photographs of the kitchen were nothing more than scribbles there was no patching and there were no seams in those areas. Mrs. Karpinski testified that when she repapered the kitchen, she started at one end and worked her way around, using continuous pieces of wallpaper but for one area over the cupboards where it was necessary to patch with several pieces. 66) Mrs. Karpinski’s evidence regarding the occasions when Ms. Schira and Mr. Snider came to the home, without Ms. Mui, differed materially from that given by each of them. She says that Mr. Snider first came to the acreage while she was there in May, 1999. Mrs. Karpinski did not know who he was, but confirmed for him that the house was for sale and told him he was welcome to go through it. He did not stay long, and Mrs. Karpinski did not go into the house with him, but rather continued to mow the lawn. It was after that, according to Mrs. Karpinski, that Ms. Schira came to the property by herself, after first making arrangements with Mrs. Karpinski over the telephone. Mrs. Karpinski says that she left the house leaving the door unlocked for Ms. Schira. She says that Ms. Schira came to the acreage by herself on two occasions. Next, Mr. Snider returned to inquire about the gas line, but Mrs. Karpinski could not recall if he went into the house, or even if she was aware at that time of the connection to Ms. Schira. The third occasion that Mrs. Karpinski says that she met Mr. Snider was approximately four days before the offer to purchase was made on June 19, 1999. Again, according to Mrs. Karpinski, Ms. Schira telephoned directly to make the arrangements and this time she was accompanied by Mr. Snider to “inspect” the property. They were there for about five hours between 6:00 and 11:00 p.m., and during that time went through each room in the house, including the attic and the crawl space, along with Mr. and Mrs. Karpinski. The last time prior to possession that Ms. Schira and Mr. Snider came to the acreage without Ms. Mui, apart from when Mr. Snider came to do fencing, was when they looked at the quadrunner for sale and learned how to operate the mower. 67) According to Mrs. Karpinski, Mr. Jacobucci went through the PCDS with both her and Mr. Karpinski before it was signed. She testified that the answers to the questions were correct. There were no defects in the house. Although admitting that she had never been in the attic or crawl space, or on the roof, she was insistent that there were no problems in any of those areas. There was no damage in the home due to water or excess moisture, other than the frost in the master bedroom. The roof did not leak and the shingles were fine. Mrs. Karpinski said any crack filling in the house was merely cosmetic, which is why there was no reference made to it the PCDS. She cannot recall discussing with Mr. Jacobucci whether or not the fact that the house had been moved should be disclosed. 68) Mrs. Karpinski acknowledged receiving copy of the building permit from the rural municipality on June 24, 1999. She could not say who sent it to her. The document indicates that it was faxed to her at 1:30 p.m. She denied however having any discussions with either Ms. Mui or Mr. Jacobucci about the permit. She also denied having any knowledge that Ms. Schira was unlikely to complete the sale without the permit. (b) Edward Karpinski 69) Mr. Karpinski’s testimony regarding the condition of the house before it was moved from the Rural Municipality of Gary was the same as that of his wife. There were no problems no leaking and no evidence of excess moisture, and no structural problems. 70) Prior to the move to the Rural Municipality of Corman Park, the house was cut between two dormers, and through the skylight, to separate it from the garage. This also involved cutting through the eavestroughs. The hole created by removing the skylight was tarped and shingles were removed in the area where the house was severed. The move took three days, mostly over paved roads, but also some gravel, at least one field and several ditches. He and carpenter put the house back together once it arrived at its present site. There was no building permit taken out in the Rural Municipality of Gary, and there were no inspections done in the Rural Municipality of Corman Park. 71) During the move to the Rural Municipality of Corman Park, Mr. Karpinski acknowledged that there was damage to the house. The garage ceiling collapsed and other pieces of drywall came off. Unlike his wife, however, Mr. Karpinski said this had nothing to do with rain or water infiltration during transport. The ceiling and the drywall in the garage, as well as the cracks in the interior of the house, were repaired by Mr. Garinger. 72) Like Mrs. Karpinski, Mr. Karpinski said there were no other repairs required to the house after the damage occasioned by the move had been fixed. There were also no maintenance issues. When they sold the house in 1999, there were no visible cracks other than one in the master bedroom which Mr. Karpinski said could be observed because of wrinkles in the wallpaper. 73) The absence of ridge caps in two locations was, according to Mr. Karpinski, not of any concern since they were merely for “appearance” to give the roof finished look. He said when the house was constructed, metal cap was installed in these areas over the sheeting and black jack applied over the seams. Mr. Karpinski did acknowledge that the building plans for the house included ridge caps in all areas. 74) Notwithstanding his direct testimony that the house required no further maintenance or repairs other than those completed shortly after the move, Mr. Karpinski agreed that he had filled many cracks in the walls himself. He said those cracks were “not that bad”. He could not recall if it was him who had installed the cardboard over the drywall leading into the unfinished bathroom. He did not think that he had done it. As to the metal brace above the hallway door, Mr. Karpinski said he installed it at the time of construction because it was provided by the manufacturer. It was the only such brace supplied. He offered no explanation why it was installed over an original layer of wallpaper. 75) Mr. Karpinski also had recollections of the visits make to the acreage by Ms. Schira and Mr. Snider that differed from other testimony at trial. He says that Ms. Schira came to the house three times prior to the June 19, 1999 viewing. He was not present on any of those occasions, but says he learned of the visits from his wife. It was on June 19, 1999 that Mr. Karpinski testified that he first met Ms. Schira and Mr. Snider personally when they came to the acreage with Ms. Mui to “inspect” the property. He says that upon their arrival mid-afternoon, they all viewed the property together and walked around the acreage. During his walkabout with Mr. Snider, Mr. Karpinski says he pointed out the “cut away” hill where excavation had occurred when the house was moved from the Rural Municipality of Gary. He said he also showed Mr. Snider the still evident tire tracks where the semi-trailer had crossed the neighbour’s field and entered onto the acreage. At the house, Mr. Karpinski told Mr. Snider that the shingles would be good for 40 years, and says he told him that when the building was moved, it was supported by beams. He showed him the missing eavestroughs that had been cut off at the time of the move. 76) Inside the house, Mr. Karpinski says he took Mr. Snider into the crawl space and together they examined the concrete footings. Mr. Karpinski showed Mr. Snider where the “roughed in” plumbing had been disconnected before the move and indicated that it still needed to be reconnected to water and the septic tank. According to Mr. Karpinski, Mr. Snider went into the attic with flashlight at about 7:30 p.m. 77) Mr. Karpinski testified that Ms. Schira and Mr. Snider were at the home until approximately suppertime, returning about 30 minutes to one hour later, and then staying late until 10:00 or 10:30 p.m. It was three or four days after this visit that Mr. Karpinski says that the two of them returned again to see how the various systems worked and to start on the fencing. When it was suggested to Mr. Karpinski that it was unlikely that Ms. Mui, Ms. Schira and Mr. Snider were at his home until as late as 10:30 p.m. on June 19, 1999, since that was when the offers and counter-offer were being made, he said that Ms. Mui must have left earlier. He then said that Ms. Schira must also have left earlier, but that Mr. Snider remained. Mr. Karpinski insisted that it was on June 19, 1999, before any offer was made, that Mr. Snider was informed of the house being moved. 78) Mr. Karpinski recalls completing the PCDS with Mr. Jacobucci on June 21, 1999. He says that he directed his mind to all the questions and asked Mr. Jacobucci about several of them. He understood that “structural” meant ceiling, roof, walls and floors. He did not believe Ms. Schira would need to make any structural repairs. Regarding “damage due to water”, Mr. Karpinski said that he was aware of none the problem with frost on the master bedroom window was due to “frost”, not “moisture”. This was not, according to Mr. Karpinski, structural damage. In any event, Mr. Karpinski said that the damage had been corrected when they removed the wallpaper, fixed the damage and repainted. The PCDS completed by Mr. and Mrs. Karpinski on June 21, 1999 did not disclose any general or structural problems with the house. 79) After Ms. Schira took possession of the acreage, Mr. Karpinski returned once in late September, 1999, at the request of Mr. Jacobucci. While there, he applied more caulking around the leaking skylight. (c) James Garinger 80) James Garinger is an experienced drywall contractor and has known Mr. and Mrs. Karpinski since 1994 or 1995 when he first did some work for them at their business site. He testified on their behalf. After they moved their home to the Rural Municipality of Corman Park, they asked him to repair drywall damage occasioned by the move. He was told by Mr. Karpinski to fix the drywall that had dropped from the garage ceiling, and to fix any nail pops or cracks in the interior of the house. He repaired several cracks in the master bedroom, several above doorways, and the longest one, stretching about four feet, in the kitchen. He also fixed, to his recollection, about six nail pops inside the house. He remembers being surprised that there were not more in house that had been moved. While he was doing the repairs to the home, he did not notice signs of water damage. (d) Roman Cherlounogrobsky 81) Roman Cherlounogrobsky testified on behalf of Mr. and Mrs. Karpinski. In 1996 he prepared an appraisal report of their home for his client, financial institution. His independent recollection of being at the house was vague, given the lapse of time, but his report assisted him in his testimony. Generally speaking, when doing an appraisal, he goes into every room and makes notes of any observable damage or other problems. He approaches the appraisal from market perspective for lending purposes. There are, accordingly, things that he would miss that contractor or engineer would not. His reports assume that there are no hidden defects. 82) During the course of his inspection of Mr. and Mrs. Karpinski’s home, Mr. Cherlounogrobsky made no notes indicating any observable water damage which, according to him, is the primary source of damage to house. He would have, as is his usual practice, been watching for stains on the ceiling, blistering paint, discoloration and damaged gyprock. Mr. Cherlounogrobsky could not recall specifically if he entered either the crawl space or the attic. He knows that he did not go onto the roof. He also did not review any building permits, nor did he have any knowledge about the interior venting of the dryer and kitchen range. (e) Mario Jacobucci 83) Mr. Jacobucci has been realtor since 1967. When he first listed Mr. and Mrs. Karpinski’s property in 1998, he followed his usual practice of conducting visual inspection of the premises. Based upon this inspection, and information obtained from his clients, he prepared the brochure that came to the attention of Ms. Schira. It was entitled “Country Luxury”. The special features included that the home was of quality construction. He based this representation upon his comparison to what he considered to be, in his experience, an “average” home in terms of design, finish, maintenance, setting and upkeep. The floor plan was functional, and the finishings, including the trim and windows, were of better quality. The use of lumber in the framing, in Mr. Jacobucci’s view, would also permit greater insulation factor, although he conceded that he did not know the nature or type of insulation in the house. He also agreed that he knew nothing about construction, but “thought” that quality materials had been used in the building of the property. 84) According to Mr. Jacobucci, he observed no obvious problems with the home other than in several areas where finishing work was still required. He saw no signs of water or moisture damage and noticed no leaking during the open houses that he conducted, several of which occurred during heavy rains. He did know, however, that the skylight had leaked in the past. This, according to Mr. Jaccobucci, was not concern leaking was common problem with skylight. Mr. Jacobucci did concede on cross-examination that he noticed three or four areas where the wallpaper above the kitchen cabinets had been patched. He was also aware, from the time of his first or second meeting with Mr. and Mrs. Karpinski that the house had been moved from the Yorkton area. Mr. Jacobucci testified that this too was not an issue for him, and not fact that needed to be disclosed to any potential purchaser. He accordingly did not include this information in his “Country Luxury” brochure. In reaching this decision, Mr. Jacobucci said that he relied upon his past experience marketing “ready-to-move” homes category of homes that are constructed off-site with the intention that they will be moved to different site for placement on foundation. Mr. Jacobucci also testified that he would not require vendor to disclose the fact that house had been moved on PCDS unless he was aware of an apparent problem such as “a wall out of whack”. In this case, Mr. Jacobucci says there were no such “tell-tale” signs that the home had been moved. 85) It was for these reasons that Mr. Jacobucci did not tell Ms. Mui that the house had been moved. When she presented him with the first offer from Ms. Schira he did, however, have several questions for her, the first querying why single woman would be buying such large property, and more importantly, why there was no condition attached requiring satisfactory home inspection. He said that Ms. Mui told him that Mr. Snider, who was plumber, would be doing the inspection. But even that had not been made condition of the offer. Mr. Jacobucci confirmed that the offer and acceptance were concluded on June 20, 1999, conditional upon the approval of satisfactory PCDS by June 22, 1999. 86) During direct examination by his counsel, Mr. Jacobucci acknowledged that prior to the transaction between Mr. and Mrs. Karpinski and Ms. Schira being finalized he learned that there was an issue over the permit for the property. He said that he relied upon assurances from Mr. and Mrs. Karpinski that such permit existed. The trial adjourned for several months, and when Mr. Jacobucci was cross-examined on this issue, his testimony was different. He then said that he did not become aware of this issue until after the possession date. He said he did not receive any calls from Ms. Mui about this issue, nor did he authorize her to speak directly to either of his clients. He denied being aware of any conversations about this matter that may have occurred directly between Ms. Mui and either of his clients. He did confirm, however, that through his past dealings with the Rural Municipality of Corman Park, he knew that inspections were not required of homes moved into the area. He also acknowledged seeing copy of the permit that was issued by the rural municipality, he believed shortly after Ms. Mui obtained it from the municipality. 87) According to Mr. Jacobucci, he did not have completed PCDS on his file, although it was established that he had completed one at the time that he obtained the listing. Mr. Jacobucci completed new PCDS with Mr. Karpinski on June 21, 1999 which differed in several respects from the original. He did not recall any specific discussion with either Mr. or Mrs. Karpinski about the need to disclose any repairs to the home arising from water damage. Mr. Jacobucci did not recall specifically discussing with either of them the need to disclose any roof leakage, although he was aware that the skylight had leaked, or the need to disclose any unrepaired damage. He would, in any event, not have considered it necessary if the problems were in the past and not recurring. He would have disclosed only current problems. 88) Shortly after Ms. Schira took possession of the property, Mr. Jacobucci began to receive calls from Ms. Mui regarding her client’s concerns about the house. He was unable to contact either Mr. or Mrs. Karpinski, so he went to the property in August or September of 1999, the same time referred to by Ms. Schira, and observed for himself the leaking that had occurred through the skylight. He suggested to Ms. Schira that caulking was required. She did not agree to having one of his maintenance people perform this task. Although complaints continued, via Ms. Mui, Mr. Jacobucci did not return to the property again for several years, after this litigation had commenced. He apparently also did not respond to the many complaints to the satisfaction of Ms. Mui who in frustration took it upon herself to write directly to Mr. and Mrs. Karpinski in October of 1999. When Mr. Jacobucci learned of this development from Ms. Mui, he went to the home of Mr. and Mrs. Karpinski and removed the letter from their mailbox before they could take delivery of it. (f) Cecelia Mui 89) Ms. Mui was realtor from 1992 until 2000. She first met Ms. Schira in April, 1998 to discuss the type of home that she wished to purchase. Ms. Schira was not in hurry, but wanted to find three bedroom home, with nice sized kitchen, lots of windows, basement and garage. She wanted the home to be in good location, and she only wanted to spend between $100,000 and $125,000. Ms. Mui told her this was not possible and they agreed upon price range of up to $150,000. 90) Together, Ms. Mui and Ms. Schira looked at many houses within the city and in the fall of 1998 began exploring acreages. Mr. Snider would generally meet them when they were viewing rural properties. The Karpinski property was first considered when Ms. Schira noticed the sign advertising it for sale. Ms. Mui printed off detail sheet and then arranged viewing through Mr. Jacobucci. This occurred in November, 1998 and was brief, general viewing only. Mr. Snider was present for short time. 91) The property was clearly too expensive for Ms. Schira. No offer was made and the acreage was subsequently taken off the market. In May, 1999, however, when Mr. Jacobucci obtained the relisting, Ms. Mui says that Ms. Schira contacted her for second viewing. According to Ms. Mui, they visited the property that month and spent nearly two hours looking at the house. Mr. Snider was present, but again only for short time and had merely “quick” look around. Ms. Mui says that while Mr. Snider was there, she asked if they would like to have home inspection, pointing out that they would have to pay for it. Ms. Mui says that she told them that home inspection would be appropriate for such big house. According to Ms. Mui, Ms. Schira did not respond, but continued walking down hallway with Mr. Snider. 92) Ms. Mui recollected no further contact between herself and Ms. Schira until June 18, 1999 when she says that Ms. Schira phoned her wanting to make an offer on the acreage. This resulted in what Ms. Mui says was the third showing of the property on June 19, 1999. They arrived there in the early afternoon and were met by Mr. Snider. On this occasion, Ms. Mui says they did more thorough viewing, going through the house room by room. She did not see Mr. Snider go into the attic, nor could she recall him entering the crawl space. Ms. Mui says she again mentioned, on two occassions, that they should have home inspection and include it in the offer. Once again, she says that Ms. Schira did not respond nor did she look in her direction. Ms. Schira and Mr. Snider were busy and talking between themselves. Ms. Mui thinks Ms. Schira heard her on the second occasion but even so, there was no response. Outside the house, the three of them toured the property in Mr. Snider’s truck and noticed the missing eavestroughs, gap in the foundation and particle board under the deck. They looked at the roof, but noticed nothing out of the ordinary. 93) Ms. Schira accompanied Ms. Mui to her office at about 4:00 p.m. They discussed making an offer of $265,000 and the possibility of home inspection. Ms. Mui did not stress the advisability of such an inspection. According to Ms. Mui’s testimony on direct examination there was no second visit to the acreage on June 19, 1999. The first offer was written in her office and delivered to Mr. Jacobucci between 5:00 and 6:00 p.m. Ms. Mui confirmed that when Mr. Jacobucci saw the offer he asked her why it was not conditional upon home inspection. The Karpinski’s counter-offer was faxed to Ms. Mui’s home later that evening and was open until noon the next day. Ms. Mui had two telephone conversations with Ms. Schira and it was during the second conversation that Ms. Schira agreed that she would pay the price requested by Mr. and Mrs. Karpinski $285,000 provided that the riding mower was included. 94) After consulting with Mr. Jacobucci, Ms. Mui wrote two new offers the first for the house at $275,000 and the second for the mower at $10,000. It was late in the evening when the offers were signed and Ms. Mui then delivered them to Mr. Jacobucci’s mailbox. 95) Ms. Mui said that there was no second visit to the Karpinski acreage on June 19, 1999, the day of the offer. She says that occurred the next day when she, Ms. Schira and Mr. Snider returned in the early evening to check the easement and to check the property line. The visit lasted 30 to 45 minutes and none of them went inside the house. Later in her testimony and during cross-examination, Ms. Mui did recall second visit to the acreage on June 19, 1999. She remembered meeting there with Mr. Snider to do some measurements. The visit lasted only twenty minutes during which time she overheard Mr. Kaprinski tell Mr. Snider that the roof shakes would be good for 40 years. 96) On June 21, 1999, Ms. Mui testified she picked up copy of the PCDS from Mr. Jacobucci and left it in Ms. Schira’s mailbox. According to Ms. Mui, she then met with Ms. Schira at 8:00 p.m. on June 23, 1999 after obtaining an extension of the time to remove the conditions on the offer because Ms. Schira was out of town. She says that the meeting with Ms. Schira was lengthy as they went through each clause of the PCDS. As Ms. Schira wanted to discuss the contents of the document with Mr. Snider, he was contacted by telephone. Ms. Mui says that she read every clause out loud to Ms. Schira, who then repeated them to Mr. Snider. According to Ms. Mui, Ms. Schira accepted the PCDS that night, the conditions were removed and the Notice to Remove Conditions was delivered to Mr. Jacobucci. It was also that night that Ms. Mui says Ms. Schira asked about the building permit for the property and Ms. Mui agreed to make inquiries at the office of the rural municipality the next day. Ms. Mui testified that the only reason that Ms. Schira was interested in the permit was to determine if the taxes had been assessed. She says that she phoned Mr. Karpinski that night, after obtaining the permission of Mr. Jacobucci, who confirmed that building permit did exist. It was Ms. Mui’s evidence that at that point, neither she nor Ms. Schira were aware that the house had been moved. 97) According to Ms. Mui, she telephoned the Rural Municipality of Corman Park the next morning, June 24, 1999 and asked to have the permit faxed to her. The rural municipality was experiencing power outage, so Ms. Mui obtained certain information over the phone and then received fax from the rural municipality early in the afternoon once power had been restored. The letter from the rural municipality advised that the taxes had not yet been assessed for 1999 and confirmed the number of the permit authorizing Mr. and Mrs. Karpinski to move the house onto their acreage. She also received copy of the development permit granted by the rural municipality year earlier. Ms. Mui says this was the first that she knew about the move. She told Ms. Schira immediately and sent to her the documentation that she had received, which according to Ms. Mui did not include copy of the building permit. Ms. Mui says that she had no discussion with Ms. Schira about the contents of that documentation nor did they discuss the fact that the house had been moved. According to Ms. Mui, Ms. Schira’s concern was about the taxes and she never asked about the move, and she did not express any concerns. 98) Ms. Mui says since she never received copy of the building permit from the rural municipality she did not provide one to Ms. Schira. She testified that Ms. Schira only wanted to “know” that there was building permit, she did not ask to “see” one. Ms. Mui also testified that she knew in 1999 that the rural municipality did not, at that time, do any inspections of homes. She did not tell this to Ms. Schira then, or at any subsequent time, because Ms. Mui says Ms. Schira did not ask. copy of the building permit was disclosed by Ms. Mui in her Statement of Documents delivered in this proceeding. No explanation was offered as to when, or how, the building permit came into Ms. Mui’s possession. 99) Shortly after Ms. Schira took possession of the property, Ms. Mui began to receive telephone calls from her with various complaints. In response, Ms. Mui and her husband went to Ms. Schira’s home in mid-August, 1999. It had been raining for several days and the skylight was leaking. Both Ms. Mui and her husband were able to poke their fingers through moisture pocket in the wall of the master bedroom. Ms. Schira pointed out other bulges in the wallpaper and told Ms. Mui about the crickets entering the house, and about the cracking noises she had been hearing since her first night in the home. 100) That was the last time that Ms. Mui recalls being at Ms. Schira’s home. She did not testify about attending at the property later accompanied by Mr. Jacobucci. She did, however, continue to receive repeated phone calls from Ms. Schira. According to Ms. Mui, Ms. Schira was becoming desperate. She was concerned that water was coming into the house and was worried that the roof would fail. She wanted compensation to carry out the repairs. Ms. Mui said that Ms. Schira did not start to make “fuss” about the house being moved until her complaint to the Saskatoon Real Estate Board. Ms. Mui’s attempts to obtain any co-operation from Mr. and Mrs. Karpinski, through Mr. Jacobucci, were largely unsuccessful. She finally wrote directly to Mr. and Mrs. Karpinski, but her letter was removed from their mailbox by Mr. Jacobucci. 101) In 1999, Ms. Mui testified that her usual practice was to gather documentation regarding property only if she had any “doubts” about it. She would not obtain any information, including copy of the title, until after an offer had been made. It was her standard practice at that time to mention home inspection to prospective purchaser, but it was not her duty or obligation to recommend one. The Issues 102) Broadly speaking, this proceeding raises two main issues, the first being the liability of each of the defendants. There was no suggestion made that should Ms. Mui and Mr. Jacobucci be found liable to Ms. Schira, that the corporate entities, 100% Realty Associates Ltd. and Trevi Holidngs Ltd., would not be vicariously liable for their acts or omissions. The second issue is the quantum of damages, if any, sustained by Ms. Schira. Costs is also an issue. determination of the forgoing will depend, to large extent, upon the credibility of the respective parties, and it is for this reason that address that matter first. 1. The credibility of the respective parties 103) As noted, while the facts of this case raise several important issues, the one at the forefront is that of the credibility of the parties. The assessment of credibility is not science and, as pointed out in R. v. Gagnon, [2006] S.C.R. 621, 2006 SCC 17 (CanLII) at para. 20, it is not always possible to “articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.” Assessing credibility is “a difficult and delicate matter that does not always lend itself to precise and complete verbalization”. (R. v. R.E.M., [2008] S.C.R. 3, 2008 SCC 51 (CanLII) at para. 49). There is no requirement that trier of fact must accept or reject the evidence of witness in its entirety. None or part of witness’s evidence may be accepted, and different weight may be attached to various parts of the testimony. (R. v. D.R. 1996 CanLII 207 (SCC), [1996] S.C.R. 291 at para. 93 and R. v. J.H. (2005), 2005 CanLII 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 44). 104) There are, nonetheless, certain principles, or tools, that have emerged from the jurisprudence that can assist the trier of fact when assessing credibility. These factors were summarized in Novak Estate (Re), 2008 NSSC 283 (CanLII), 269 N.S.R. (2d) 84 (N.S. S.C.) at para. 36: a) The ability to consider inconsistencies and weaknesses in the witness’s evidence, which includes internal inconsistencies, prior inconsistent statements, inconsistencies between the witness’ testimony and the testimony of other witnesses. b) The ability to review independent evidence that confirms or contradicts the witness’ testimony. c) The ability to assess whether the witness’ testimony is plausible or, as stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1951] B.C.J. No. 152, 1951 CarswellBC 133, it is “in harmony with the preponderance of probabilities which practical [and] informed person would readily recognize as reasonable in that place and in those conditions”, but in doing so am required not to rely on false or frail assumptions about human behavior. d) It is possible to rely upon the demeanor of the witness, including their sincerity and use of language, but it should be done with caution (R. v. Mah, [2002] N.S.J. No. 349, 2002 NSCA 99 (CanLII), paras. 70-75). e) Special consideration must be given to the testimony of witnesses who are parties to proceedings; it is important to consider the motive that witnesses may have to fabricate evidence. R. v. J.H., 2005 CanLII 253 (ON CA), [2005] O.J. No. 39 (Ont. C.A.), paras. 51-56). 105) In addition to the foregoing, there are other factors, or subsets of the foregoing, that have considered when assessing the credibility of the parties and their witnesses. Of importance is whether or not the witness actually observed the factual matters underpinning his or her testimony. And, while the demeanor of witness is not per se reliable measure of credibility, that witness’s ability to provide evidence in candid and straightforward manner is worthy of note. Just as worthy of note is that witness’s tendency to be evasive or argumentative, and his or her ability to make admissions against self-interest, as opposed to repeated self-serving statements. 106) With the above in mind, I have determined that certain of the evidence of each of Mr. Karpinski, Mrs. Karpinski and Ms. Mui is so unreliable that the whole of their evidence is cast with doubt. It is because of this that where their evidence contradicts or conflicts with that of other witnesses on material facts, have rejected their evidence. 107) There are many reasons for me reaching this conclusion. First, while like any party to proceeding, Ms. Schira had much to gain from this litigation, her evidence was given in candid and forthright manner. She answered questions posed to her directly and without argument. Her evidence was consistent throughout and remained intact after cross-examination. The same can be said of Mr. Snider, and the other of Ms. Schira’s witnesses. 108) Both Mr. Loraas and Mr. Epp are professionals with no interest in the outcome of this action. Their evidence was largely unchallenged and alternate defence theories to the conclusions reached by Mr. Loraas and the opinions given by Mr. Epp were not supported by any independent or expert evidence. Ms. Mui did, however, suggest that the observations of Mr. Loraas that the pine shakes were largely rotted should be rejected or discounted, thereby undermining in part the basis for Mr. Epp’s opinion that they required replacement. She argued an adverse interest should be drawn since Ms. Schira did not have the roofer who actually did the repair work testify. Relying on Murray v. Saskatoon (City)(No. 2), 1951 CanLII 202 (SK CA), [1952] D.L.R. 499 (Sask. C.A.), Ms. Mui says this leads to an inference that different testimony from that of Mr. Loraas would have been provided. do not accept this argument. While Murray, supra, does stand for the proposition that an adverse inference may be drawn where party does not call witness by which certain facts may be elucidated, it applies not only to the party that bears the onus of proof, but also to the party who wishes to rebut certain evidence. In Murray, supra, at para. 15, the Saskatchewan Court of Appeal cited with approval the decision of Blatch v. Archer (1774), Cowp. 63 at p. 65, 98 E.R. 969 where Lord Mansfield is reported as “[i]t is certainly maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.” Here, Ms. Mui and all other defendants were aware of the identity of the contractor who repaired the roof. They also knew the names of the roofers who had inspected the roof before Mr. Loraas. None chose to call the contractor, or anyone else, to contradict the evidence of Mr. Loraas. The commentary from Mr. Karpinski that the shingles didn’t look rotten in the video tape is not sufficient to rebut Mr. Loraas’ evidence. I have, accordingly, accepted the observations of Mr. Loraas and the opinions of Mr. Epp. 109) There are several parts of the evidence of Mr. and Mrs. Karpinski, and of Ms. Mui, that were troubling. For Mr. and Mrs. Karpinski, it was important for them to have the Court believe that Ms. Schira knew that the house had been moved to its present site and that she was aware of certain problems before the offer to purchase was made. For Ms. Mui, the opposite was true. It was to her benefit to have the Court find that neither she nor Ms. Schira had this knowledge until after the conditions had been removed. In the case of each of these defendants, am satisfied that their evidence in this area went beyond the mere frailties associated with the hazy recollection of past events, but was deliberately designed to mislead for the purpose of advancing their own interests in this litigation. Some of the evidence was reconstructed. 110) On this issue, start with the evidence of Mr. Karpinski regarding what he says was lengthy visit by Ms. Mui, Ms. Schira and Mr. Snider on June 19, 1999 for the purposes of “inspecting” the property. It is simply implausible, if not impossible, to accept that all three of these individuals, or even one or two of them, were at the property until 10:00 or 10:30 p.m. as alleged by Mr. Karpinski. This was the evening that negotiations by way of offers and counter-offer were being conducted. It was not disputed that the counter-offer made by Mr. and Mrs. Karpinski was faxed from Mr. Jacobucci’s office at 9:38 p.m., and was accordingly executed at some time prior to then. When confronted with this absurdity, Mr. Karpinski changed his story to suggest that perhaps Ms. Mui left earlier, followed later by Ms. Schira. After further waffling on this matter, Mr. Karpinski maintained his position that Mr. Snider stayed late in the evening. According to Mr. Karpinski, it was not Mr. Snider who needed to sign the offer, and it did not seem unusual to him that Mr. Snider would be present while he, his wife and Mr. Jacobucci discussed and executed counter-offer. 111) Not only was this evidence internally inconsistent, it did not conform with the evidence that Mr. Karpinski gave at his examination for discovery. There, he could not identify the date that Mr. Snider was at the property, not even if it was weekday or weekend. By way of explanation at trial, Mr. Karpinski said he was now certain of the date because it was the date the offer was made and that at the examination for discovery he was uncertain of the date of the offer. Mr. Karpinski was forced to agree, however, that copy of the offer to purchase was before him at the examination for discovery. 112) reject Mr. Karpinski’s evidence regarding the events of June 19, 1999 as concocted. Specifically, do not accept that Mr. Snider conducted any lengthy “inspection” of the property prior to the offer to purchase, including an examination of the attic, crawl space and footings. Mr. Karpinski did not tell Mr. Snider that the “roughed in” plumbing was not connected to the septic tank and water, and he did not tell Mr. Snider on or before June 19, 1999 that the house had been moved, none of which was even put to Mr. Snider during cross-examination. Along with this, reject both his and Mrs. Karpinski’s evidence that Ms. Schira came to view and inspect the property, without Ms. Mui, on at least three occasions before June 19, 1999. 113) In direct contrast to the evidence of Mr. Karpinski, Ms. Mui presented almost equally implausible evidence that neither she nor Ms. Schira knew that the house had been moved until after the conditions had been removed on June 23, 1999. In brief summation, Ms. Mui testified on this issue that she delivered the PCDS to Ms. Schira’s mailbox on June 21, 1999, but did not meet with her to discuss its contents until the evening of June 23, 1999. Mr. Snider was on the telephone. Ms. Schira accepted the PCDS and removed the conditions. At the same time, Ms. Schira inquired for the first time about building permit because, according to Ms. Mui, she had concerns about the tax assessment. Ms. Mui says she learned only the next day, June 24, 1999, that the house had been moved when she contacted the rural municipality. 114) The foregoing account does not accord with other testimony given by Ms. Mui during the trial. For example, she also testified that she spoke to Mr. Snider on the telephone at 11:00 p.m. on June 22, 1999 when she called to tell him that Mr. Karpinski had confirmed the existence of the building permit. She said Mr. Snider was upset with her for phoning Mr. Karpinski so late in the evening. This account accords with that of Mr. Snider. As well, Ms. Mui’s evidence at trial did not correspond with answers given by her at her examination for discovery where she said that she thought she knew that the house had been moved when she removed the conditions, but was unaware of all the details. Ms. Mui’s explanation for the discrepancy was that she now remembered things differently and had mixed up the dates at the examination for discovery. Further, Ms. Mui’s “urgent” fax to the rural municipality on June 23, 1999 wanted confirmation that the tax assessment was “with house on land”. 115) In these circumstances, accept the evidence of Ms. Schira and Mr. Snider. building permit was requested on the evening of June 22, 1999 after they had reviewed the PCDS together. The reason for the request was as testified to by Mr. Snider. Ms. Mui contacted the rural municipality by telephone the following morning. It was then that Ms. Mui learned the house had been moved. This information was known to Ms. Mui, and to Ms. Schira, before the conditions were removed later in the day of June 23, 1999. 116) There were other areas where Ms. Mui’s evidence was inconsistent but, with one exception, can in my view be attributed to confusion and the lapse of time. For example, Ms. Mui said that she, Ms. Schira and Mr. Snider viewed the acreage in May, 1999 when am satisfied they did not. Both Ms. Schira and Mr. Snider denied that any viewing occurred that month and Ms. Mui agreed that she might be mistaken, acknowledging that unlike other viewings, the visit was not recorded in her daytimer. In any event, nothing turns on this. Another area of her testimony where Ms. Mui appeared confused was with respect to whether there were one or two viewings on June 19, 1999. Ms. Mui initially did not recall the second visit, then she remembered it, and then forgot it again, all within the space of several hours of testimony. 117) The area, however, where have concluded that Ms. Mui’s inconsistent evidence was not due to confusion, but rather designed to meet her own self-interest, was in an area that is central to core issue in this proceeding. That is the advice that Ms. Mui did, or did not, give with respect to home inspection. At trial, Ms. Mui said that she first mentioned home inspection to both Ms. Schira and Mr. Snider during the viewing in May, 1999, viewing which as previously indicated, am satisfied did not occur. Ms. Mui then testified that she brought up the subject twice during the viewing which occurred on the afternoon of June 19, 1999. She said that on the second occasion Ms. Schira heard her, but did not respond. This evidence, both as to the frequency with which Ms. Mui said she broached the possibility of home inspection, and Ms. Schira’s reaction, again differed from Ms. Mui’s evidence at her examination for discovery. The discrepancy was in Ms. Mui’s favour. The most significant contradiction in her testimony on this subject occurred during cross-examination. For the first time Ms. Mui said that she actually recommended home inspection to Ms. Schira, rather than merely mentioning it. This differed from Ms. Mui’s previous testimony, both earlier in the trial and at her examination for discovery. As to the conflicting answers at the examination for discovery, Ms. Mui said that her memory was now better than it had been in 2001, the year of the discovery. According to Ms. Mui, her memory had been “refreshed”. 118) return now to other aspects of the testimony of Mr. and Mrs. Karpinski which casts doubt on their evidence as whole. Generally speaking, the evidence of both was at times argumentative, evasive and with respect to Mr. Karpinski in particular, replete with unsupported theories. intend to point out by way of example only several instances where it was most apparent that their evidence was unreliable. 119) As noted earlier, during the first part of the trial, Mrs. Karpinski testified that she knew nothing about ridge caps. After an adjournment, lasting number of weeks, Mrs. Karpinski returned armed with an explanation about the missing ridge caps. She now was able to testify that the ridge caps were not necessary they were merely decorative. Mrs. Karpinski went into some considerable detail about this aspect of roof construction. She said there was metal cap, tar paper and black jack in the areas where the ridge caps had not been installed. She suggested that the sealant on the roof identified by Mr. Loraas in one of his photographs was this black jack. 120) Also during her testimony, Mrs. Karpinski was insistent that Ms. Schira had “staged” the chalk lines in the pictures showing patched wallpaper in the kitchen. Mrs. Karpinski reiterated that in that area the wallpaper had been installed in one continuous strip and was solid piece. She challenged someone to go and check they would find that the patches did not exist. 121) Someone did check. Diane Pawalenko, the painter who first did repair work for Ms. Schira in September, 1999 was called as rebuttal witness on this issue. Ms. Pawalenko compared the photograph to the actual condition of the wallpaper. She counted seven patches of wallpaper in that area and more in an upper corner. She could feel cracks under the paper and the chalk lines corresponded to the seams where the paper had been patched. 122) Both Mr. and Mrs. Karpinski admitted that they had discussed their evidence, and that of other witnesses, on many occasions. Mrs. Karpinski agreed that much of her testimony regarding facts of which she had no personal knowledge came from her husband. Overall, the evidence of both is so unreliable that, as noted above, have rejected it where it is in contradiction to that of other witnesses. 2. The liability of the parties 123) In considering the liability of each of the defendants I have, as previously noted, accepted the conclusions and opinions of Mr. Loraas and Mr. Epp. In particular, I find:(i) The pine shakes were rotting and many were cracked to such an extent that water could permeate the underlying joints and decking. The rot was caused by improper installation of the shakes and the absence of flashing in certain areas. The pine shakes needed to be replaced. (ii) Sealant had been applied to the center of valleys in the roof in the area of rotted shakes on at least two occasions prior to Ms. Schira offering to buy the property. It was applied to remedy leaks in the roof. (iii) Ridge caps were missing in two areas of the roof. The ridge caps were necessary, and their absence allowed water to seep into the house. (iv) The skylight leaked and caulking had been applied to stop the leaking, again before Ms. Schira offered to purchase the property. (v) Improper and inadequate venting, both interior and exterior, resulted in moisture damage to the interior of the house, in addition to that caused by the faulty roof. The improper venting needed to be corrected and additional venting was required in the attic. For the same reasons, the vapour barrier in the crawl space needed to be made continuous. (vi) Mold in the attic was due to excessive moisture, whether through roof seepage or improper venting, and predated Ms. Schira’s occupation of the residence. The mold needed to be removed. (vii) Excessive moisture and humidity in the house because of the foregoing problems caused interior damage including moisture pockets, paint blisters and damaged drywall. (viii) Nail pops throughout the house were largely the result of the house being moved, and the disruption to its structural integrity. (ix) The house was not of quality construction. Additionally, had an inspection been done after it had been moved to the Rural Municipality of Corman Park, many instances of National Building Code violations would have been discovered. (a) Edward and Verl Karpinski 124) As noted earlier, Ms. Schira has alleged that Mr. and Mrs. Karpinski are liable to her for breach of contract as well as negligent and fraudulent misrepresentation. The claim for breach of contract has its foundation in the lack of disclosure provided by Mr. and Mrs. Karpinski when completing the PCDS. In this case, the PCDS was incorporated into the agreement for sale and its provisions accordingly became part of the contract between Ms. Schira and the parties. 125) The PCDS in use in 1999, and signed by Mr. and Mrs. Karpinski, had 10 “General” questions and three questions relating to “Condominium Property”. These 13 questions all allow the vendor to answer in one of four ways “Yes”, “No”, “Do Not Know” or “Does Not Apply”. There are 15 questions under the category “Structural”. There are only three ways in which seller may answer these questions “Yes”, “No” or “Does Not Apply”. Finally, there is space available to provide additional comments and/or explanations. 126) At the top of the PCDS, emphasized in bold type and capital letters is the statement “PLEASE READ THE INFORMATION ON THE REVERSE SIDE OF THIS FORM”. There, there are several clauses of general application, including the following: ANSWERS MUST BE COMPLETE AND ACCURATE This disclosure statement is designed in part to protect the sellers by establishing that all relevant information concerning the property has been provided to the buyers. It is important that the sellers not answer “do not know” or “does not apply” if, in fact, they know the answer. An answer must provide all relevant information known to the sellers. In deciding what requires disclosure, the sellers should consider whether they would want the information if they were potential buyer of the property. BUYERS MUST STILL MAKE THEIR OWN ENQUIRIES The buyers must still make their own enquiries after receiving the disclosure statement. Each question and answer must be considered and, where necessary, keeping in mind that the sellers’ knowledge of the property may be incomplete, additional information can be requested from the sellers or from an independent source such as the Municipality. Buyers can hire an independent inspector to examine the house to determine whether defects exist and to provide an estimate of the cost of repairing problems that have been identified on the disclosure statement or on inspection report. 127) When completing the PCDS, Mr. and Mrs. Karpinski answered “No” to the following “Structural” questions: B. Are you aware of any structural defects with the dwellings/improvements? E. Are you aware of any moisture and/or water problems in the basement or crawl space? F. Are you aware of any damage due to wind, fire, water, insects or rodents? G. Are you aware of any roof leakage or unrepaired damage? 128) In the section for additional comments or explanations, the only comment made by Mr. and Mrs. Karpinski was with respect to power line encroachment. 129) PCDS is not intended to act as warranty. As pointed out in the document itself, its purpose is, in part, to put potential purchaser on notice with respect to defects known to the vendor. This allows the purchaser to make an informed decision. PCDS is similarly not guarantee that there are no defects in the house other than those addressed in the statement. However, once vendor responds incorrectly to questions posed and signs PCDS the “doctrine of caveat emptor falls away as defence mechanism and the vendor must speak truthfully and completely...” about those matters. (Kaufmann v. Gibson, [2007] O.J. No. 2711 (Ont. S.C.) (QL) at para. 119. See also: Alevizos v. Nirula, 2003 MBCA 148 (CanLII), 180 Man. R. (2d) 186 (Man. C.A.) at para. 38). 130) In this case, I have concluded that Mr. and Mrs. Karpinski did not speak “truthfully and completely” when answering all the questions in the PCDS. accept that neither may have appreciated the effects of the improper venting into the crawl space and attic, the inadequate exterior venting or the non-continuous vapour barrier. If neither had recently been in the attic, they may not have been aware of the water and moisture damage that was accumulating in that area. However, given their lack of veracity on key issues, I do not accept that they were unaware of other water and moisture damage, whether arising from the improperly installed shingles, the missing ridge caps, the leaking skylight or inadequate venting that was occurring elsewhere in the interior of the house. They knew of water damage in the master bedroom from frost build up and they knew the skylight leaked. am also satisfied, based upon the evidence of Mr. Loraas and Mr. Epp, that the roof leaked, that the sealant evident on the roof was sufficiently old to predate Ms. Schira purchasing the house, and that it was applied while Mr. and Mrs. Karpinski occupied the house to remedy leakage problem. This, along with other moisture damage to the interior of the home, including sink holes and moisture pockets, was repaired and effectively concealed by Mr. and Mrs. Karpinski. It should have been disclosed. 131) Mr. and Mrs. Karpinski also denied knowing of any structural defects with either their dwelling or the improvements. Both, however, knew that their house had been cut into two pieces through the roof, had been transported some 300 kilometers over the course of three days, and had sustained damage. The garage ceiling collapsed and drywall fell off the walls. Cracks appeared in the interior of the house which am satisfied were ongoing, and of greater severity and frequency than either Mr. or Mrs. Karpinski were prepared to admit. This ongoing problem was concealed by Mr. and Mrs. Karpinski through repairs to the drywall, reinforcement at stress points, repainting and patching of wallpaper. 132) Severing house through its roof and lifting it from its foundation would, to any reasonable person, amount to damage to its structural integrity, whether repaired or not. As Mr. Epp said the entire structural integrity is sent into “disarray”. This is factor that could influence the decision of purchaser to acquire the property, or at minimum, to consider or reconsider the advisability of home inspection. The act of cutting the house into two pieces and moving it was structural damage that should have been disclosed on the PCDS. 133) Before finally determining the issue of contractual liability to Ms. Schira on the part of Mr. and Mrs. Karpinski based upon their answers in the PCDS, it is necessary to address an argument raised by them, and by Mr. Jacobucci. They all took the position that only current defects or ongoing problems needed to be disclosed. If repairs had been completed, then disclosure was unnecessary. 134) This precise issue was considered in Kaufmann v. Gibson, supra. There, two questions in the disclosure statement were in all material respects the same as questions and in the PCDS in this case. The questions were framed in the present tense and started with the words “Are you aware...”. The disclosure statement included similar general paragraphs regarding the obligations on the part of vendors to answer the questions completely and accurately, and on the part of buyers to make their own inquiries. 135) At paras. 101-108, Killeen J. rejected the “present-tense” or “current” interpretation with respect to these questions, finding it patently impossible to give such narrow reading to the questions. The questions deserved, particularly in light of the spirit and purpose of disclosure statement as set out in the general clauses, to be given “a plain, common-sense reading rather than narrow or tortured one.” 136) agree with the conclusion of Killeen J. prospective purchaser does not look to the PCDS only to ascertain that the roof is not leaking on the day that it is signed. Accordingly I find Mr. and Mrs. Karpinski liable to Ms. Schira for breach of contract for failing to disclose in questions B, F and G of the PCDS the existence of structural defects, damage due to water, and roof leakage. The terms of the PCDS formed part of the agreement between the Karpinskis and Ms. Schira, and the deliberate withholding of this information amounted to a false representation as to the condition of the home. With respect to damage arising from these defects, the doctrine of caveat emptor does not apply. 137) The second claim made by Ms. Schira against Mr. and Mrs. Karpinski is in tort and is based upon misrepresentation, negligent and fraudulent. The failure to disclose latent defect in response to question can result, depending upon the circumstances, in finding of negligent, or fraudulent, misrepresentation. In this case, the defects addressed in the PCDS were latent. It was not discernable on reasonable visible inspection to Ms. Schira, nor to Ms. Mui or others who viewed the property at various times, that the house had been moved, that the skylight leaked, that the roof was rotting and had been caulked, or that there was water damage to the interior of the house. Certain of these defects, or the consequential damage, were actively concealed by Mr. or Mrs. Karpinski, and the answers given on the PCDS were, to the knowledge of both of them, incorrect or incomplete. Ms. Schira relied on the representations in the PCDS, and suffered damage. The same can be said about the representations made by Mr. Karpinski about the absence of any problems with the roof. 138) The five requirements for negligent misrepresentation have been established by Ms. Schira. First, there was duty of care on the part of Mr. and Mrs. Karpinski to correctly, truthfully and completely report the condition of the property in the PCDS. Second and third, the representations made in questions B, and were inaccurate and misleading, and the Karpinskis were, at minimum, negligent in making those representations. Fourth, Ms. Schira relied on the statements in the PCDS, and finally, damages resulted. (Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] S.C.R. 87 at para. 33). The failure to disclose, or silence as to known defect, amounts to an act of concealment of material fact and has the same effect as an express misrepresentation and is sufficient to attract liability. (Thomas v. Blackwell, 1999 SKQB 168 (CanLII), [1999] S.J. No. 769 at para. 18). 139) As to fraudulent misrepresentation, the requirements are the same with the exception that the false representations must be knowingly or recklessly made. Again, silence or half-truths as to known latent defects, or active concealment of patent defects can amount to fraud. (Alevizos v. Nirula, (2003) 180 Man. R. (2d) 186, 2003 MBCA 148 (CanLII) at para. 24). finding of fraudulent misrepresentation may result in recision of the contract, claim that has in this case been abandoned by Ms. Schira. For reasons already set out, I would find that the false representations knowingly made by Mr. and Mrs. Karpinski, and their silence as to material facts, were fraudulent. (b) Cecilia Mui and 100% Realty Associates Ltd. 140) Ms. Schira has sued Ms. Mui in negligence, negligent misrepresentation and breach of fiduciary duty. I have concluded that Ms. Mui was negligent and that her conduct and advice to Ms. Schira fell below the standard of care expected of a realtor acting for the purchaser of a rural property in 1999. 141) Mr. Friesen, whose expert opinions were uncontradicted, set out in the evidence the obligations expected of Ms. Mui. Ms. Mui fell short in many respects. She did not conduct any preliminary background checks with the Rural Municipality of Corman Park, which would include determining if proper permits had been obtained, prior to Ms. Schira’s offer to purchase. According to Mr. Friesen, this gains particular importance where it is known that rural municipality does not conduct its own inspections. Based upon my findings as to credibility, am also satisfied that Ms. Mui did nothing more than merely mention home inspection to Ms. Schira on one occasion, and that was in her vehicle on the afternoon of June 21, 1999. At no time did she recommend home inspection even after she knew that the house had been moved and before the condition regarding satisfactory PCDS was removed. According to Mr. Friesen, realtor’s obligation in 1999 would be at minimum to advise client about the benefits of home inspection, and to forcibly recommend one where there was knowledge that house had been moved. Ms. Mui did neither. Another reason to strongly recommend home inspection would be in circumstances where the realtor knew that rural municipality did not require building inspections. Ms. Mui knew this to be the case. 142) Not only was Ms. Mui aware in 1999 that the rural municipality did not require building inspections, she did not pass that information on to Ms. Schira, even after the request was made for building permit. On this issue, again accept the evidence of Ms. Schira and Mr. Snider over that of Ms. Mui. The reason that Ms. Schira wanted the building permit, and which was conveyed to Ms. Mui, was to ensure that the property had been inspected, and was constructed “to Code”. This request from Ms. Schira was even more emphatic once it was learned by her that the house had been moved. Ms. Mui knew that the existence, or non-existence, of building permit was important to Ms. Schira, and that the existence of such certificate would mean to her that there had been municipal inspection. When it came time to remove the condition regarding satisfactory PCDS, Ms. Schira trusted Ms. Mui’s advice that the PCDS “looked good”, that there was nothing to worry about, that “all was legal” and that she had the number for the building permit. Rather than provide Ms. Schira with all the relevant facts which she had duty to disclose, Ms. Mui instead encouraged Ms. Schira to finalize the transaction so that it would not be necessary to “start over”. 143) Ms. Schira relied on the representations and advice of Ms. Mui to her detriment. Ms. Schira wanted good, quality home that was in move-in condition. Ms. Mui knew this. accept Ms. Schira’s evidence that had she know of the problems with his home, she would have “run the other way”. Had Ms. Mui made adequate inquires of the rural municipality at the outset, both she and Ms. Schira would have known from the beginning that the house had been moved and as Ms. Schira said, armed with this knowledge, she would have viewed the property with different eyes. Further, had Ms. Mui fulfilled her obligation first to disclose all material facts to Ms. Schira, and second, to explain and, in these circumstances, recommend a home inspection, I am satisfied on a balance of probabilities that the outcome for Ms. Schira would have been different. Knowing the house had been moved and had not been inspected, Ms. Schira would quite likely have reconsidered her decision to purchase. At minimum, she would have had the knowledge to make an informed decision about home inspection and would have required one. home inspection, as pointed out by Mr. Friesen, would have provided complete overview of the condition of the house, from top to bottom. It would have revealed that the roof was rotting, and had been caulked. It would also have revealed the incomplete vapour barrier in the crawl space, the improper venting and the moisture problems in the attic and master bedroom. While the home inspection may not have discovered the latent defects in the home caused by the move and largely concealed, it would have put Ms. Schira on notice about the existence of, or the potential for, any moisture problems in the home. 144) Before leaving the issue of negligence on the part of Ms. Mui, it is necessary to consider an argument raised in her defence. She suggested that Ms. Schira relied on Mr. Snider for guidance and advice when purchasing the property. In effect, Mr. Snider was her “inspector” whom Ms. Schira looked to when considering the condition of the home. The evidence does not support this conclusion, nor would it alone absolve Ms. Mui from liability in negligence. Mr. Snider, despite being former spouse, remained trusted friend who Ms. Schira respected. Although experienced in plumbing and heating, he was not qualified home inspector, nor did he do home inspection. His viewings of the house prior to any offer to purchase being made were all relatively brief, and largely cursory. Further, he did not have any knowledge at that time either that the house had been moved, or that the rural municipality did not then conduct inspections of residential properties. 145) Given my findings regarding negligence, it is not necessary to consider in depth Ms. Schira’s claim arising from any negligent misrepresentation on the part of Ms. Mui. Suffice it to say that many of same facts that demonstrate Ms. Mui’s negligence, also lead to conclusion that she negligently made incorrect representations to Ms. Schira. Again, silence may amount to misrepresentation. Ms. Mui knew that the rural municipality did not conduct inspections, yet she did not disabuse Ms. Schira of her belief that building permit would be confirmation that such inspections were performed. She reassured Ms. Schira that “all was legal”, with the knowledge that, to Ms. Schira, this meant that an inspection had been done and the house was constructed “to Code”. 146) The third cause of action asserted by Ms. Schira against Ms. Mui is for breach of fiduciary duty. It is not disputed that Ms. Mui was in fiduciary relationship with Ms. Schira, and as such owed her certain duties. While am confident that Ms. Mui was negligent in fulfilling her responsibilities to Ms. Schira, am not satisfied that she failed to fulfill those obligations to her client in favour of advancing her own interests, or those of another, whether pecuniary or otherwise. The evidence is not sufficient to reach such conclusion and, accordingly, that aspect of Ms. Schira’s claim must be dismissed. (c) Mario Jacobucci and Trevi Holdings Ltd. 147) The claim against Mr. Jacobucci is in negligence and negligent misrepresentation. Mr. Friesen’s evidence was that the duty to disclose all information about property that may influence the decision to purchase is equally applicable to listing and selling realtors. Particularly, the listing realtor is bound to disclose known latent defects. In this case, according to Mr. Friesen, Mr. Jacobucci had an obligation to disclose the fact that the house had been moved. He did not. Even so, cannot conclude on the evidence that Ms. Schira relied upon Mr. Jacobucci to her detriment in this regard. She placed her reliance and trust in Ms. Mui who, had she adequately represented Ms. Schira’s interests, would have made the necessary inquiries from the rural municipality at the outset. Such inquiries would have revealed that the house had been moved, and further questions could have been put to Mr. Jacobucci. 148) I am satisfied however that Mr. Jacobucci is liable to Ms. Schira for negligent misrepresentation. Mr. Jacobucci represented the Karpinski residence to be of “quality construction”. This representation was incorrect. Mr. Epp testified that the house did not approach quality construction. Mr. Jacobucci made this representation negligently he had no particular expertise in construction and relied only on limited information obtained from Mr. and Mrs. Karpinski and his own observations as to the floor plan and finishings. Mr. Jacobucci was also complicit in, and party to, the negligent misrepresentations made by Mr. and Mrs. Karpinski in the PCDS. He knew, at minimum, that the house had been moved and damage sustained. He also knew that the skylight leaked. Ms. Schira relied on all these misrepresentations. Damages resulted. 3. The quantum of damages 149) Ms. Schira is seeking special and general damages, including damages for mental distress, aggravated damages and punitive damages. Her claim for punitive damages extends only to Mr. and Mrs. Karpinski, Mr. Jacobucci and Trevi Holdings Ltd. will deal with each of these categories of damages in order. (a) Special and General Damages 150) No evidence was proffered by any party regarding the diminution in the value of the property arising from the breach of contract or negligence of the defendants, with one exception discussed later at para. 153. That leaves the assessment of damages to be determined through consideration of the cost of repairing the house so, that to the extent possible, Ms. Schira can be restored to the position she would have been in but for the undisclosed or concealed defects, including any reasonably foreseeable consequential damage. 151) Ms. Schira provided detailed evidence regarding the money that she had already expended for repairs to her house, or to remedy certain Code violations, as well with respect to her estimate of the costs that she will still incur to complete the repairs. None of the defendants offered evidence in contradiction to that tendered by Ms. Schira, but certain of her itemized expenses were successfully challenged in cross-examination, whether as to necessity or amount. Ms. Schira reduced her claim accordingly. She also eliminated any claim for repairing defects that were clearly patent such as missing eavestroughs, cracked windows or missing handles, or expenses that she could not substantiate. Her claim for painting and wallpapering was reduced for work that she would have completed, irrespective of any damage. 152) Taking these reductions into account, Ms. Schira says that her out-of-pocket expenses, to the date of trial were $17,613.46. Of this amount, $10,900 was expended to replace the rotting pine shakes with asphalt shingles. The remaining $6,713.46 was used to pay $1,684.78 to Mr. Loraas and Mr. Epp for their advice and inspections, with the balance of $5,028.68 going towards labour, materials and tools. Her estimate of the cost of repairs yet to be done is $6,995.41. 153) In addition to the foregoing, Ms. Schira seeks compensation for the fact that she now has an asphalt shingle roof rather than pine shake roof that she was led to believe would last for another 40 to 50 years. The roof repairs were necessary, and Ms. Schira did not have the finances to install pine shakes. She obtained two estimates for pine shakes, the average cost being $25,560.70. She asks that she be paid, in damages, the amount that this cost exceeds that which she actually paid $10,900. The difference, $14,660.70 is, according to Ms. Schira, representative of diminution in the value of the house because it no longer has the attribute of more expensive roofing. 154) This argument cannot be sustained. Ms. Schira did not expend these funds, and she does not intend to do so in the future. Further, there is nothing that would support her contention that the “dollar for dollar” difference in the value of pine shakes as opposed to asphalt shingles is in fact representative of the true, or any, diminution in the value of the home. find that the costs incurred by Ms. Schira, and those yet to be incurred, total $17,613.46. The defects in the house required investigation and subsequent repair to correct existing damage and to prevent ongoing damage in the future. While small portion of the cost of materials, in excess of any reduction already made by Ms. Schira may possibly be attributed to what the defendants say is cosmetic work, that amount cannot be ascertained with any degree of certainty or precision. It would not, in any event, be of such significance to warrant adjustment. The work needed to repair the defects and consequent damage was largely labour intensive. 155) The most significant claim made by Ms. Schira is for general damages relating to her own personal labour, and that of her friends and family. Ms. Schira estimates that the time that she spent between the autumn of 1999 and August of 2004, whether in dealing with trades people, obtaining opinions, on the phone, or in actually conducting repairs was 5,142 hours. Her friends and family spent an additional 1,264 hours assisting her, for total of 6,406 hours. Ms. Schira suggest that reasonable rate of remuneration is $15 per hour. This would increase the amount of Ms. Schira’s damages by the sum of $96,090. 156) Ms. Schira, together with her friends and family, did much of the repair work to the house out of necessity. Ms. Schira did not have the financial resources to contract the work out to trades people. Wallpaper was stripped and gyprock repaired. Painting and wallpapering followed. Insulation was removed from the attic and replaced after time was spent eliminating mold. This is but short summary of the time and effort expended by Ms. Schira and her assistants. None were professionals. No doubt much of the work was done inefficiently in terms of time, and by trial and error due to lack of experience. 157) Initially, Ms. Schira’s claim for labour was based upon quantum meruit. This was abandoned when she opted to no longer seek to rescind the contract between herself and Mr. and Mrs. Karpinski. She is nonetheless entitled to damages based upon her own personal time and effort. In Drake v. R., [1999] N.J. No. 305, 548 A.P.R. 335 (Nfld. S.C.), Barry J. endorsed the following at para. 22: [22] In Jones v. Stroud, [1988] All E.R. (C.A.), the Court held that where the plaintiff has proven damage to property and the court is satisfied the property would be, or had been, repaired, it is irrelevant whether the plaintiff paid for the repairs himself. Neither should plaintiffs be penalized because they do the work personally. See, Brown v. Atlantic Insurance Co. (1996), 1996 CanLII 6603 (NL SC), 142 Nfld. P.E.I.R. 259 (Nfld. T.D.). 158) While it would be inappropriate, as noted in Jones, supra, to penalize Ms. Schira by not awarding damages for work performed personally, it would similarly be inappropriate to penalize any of the defendants for work that was not performed efficiently. Ms. Schira’s estimate of the personal time expended on labour would equate to three people working 40 hours per week, 52 weeks year, for slightly more than one year. While the hourly rate of $15 suggested by Ms. Schira is reasonable, the amount of time expended is not. Her estimate of time no doubt also included an element of repairs that were cosmetic in nature, and not reasonably consequential to the defects in the house for which Ms. Schira is entitled to compensation. Few homes are entirely free of blemish. 159) Unfortunately, Ms. Schira did not provide any quotations from trades people as to the amount that would have been charged had the work been done professionally, and do not accept her argument that because there was no evidence to the contrary, her evidence and estimates must be accepted. By the same token, none of the defendants provided any such estimate. In these circumstances, my decision is of necessity arbitrary. I award Ms. Schira $15,000 as compensation for the personal time and effort that she expended in repairing the house. 160) Ms. Schira is also seeking damages for emotional distress. From her evidence, there is no doubt that she suffered emotionally during her lengthy ordeal identifying and attempting to remedy the defects that she found in her home. As she testified, it consumed her daily life for several years. Her relationship with her children, and probably Mr. Snider as well, became strained. This alone however is not enough to attract compensation under this category of damages. 161) Recently in Satara Farms Inc. v. Parrish Heimbecker Ltd., 2006 SKQB 229 (CanLII), 280 Sask. R. 44, R.S. Smith J. reviewed both the literature and jurisprudence relating to an award of damages for mental distress. In the case of breach of contract the circumstances in which such an award will be made are severely curtailed. When dealing in the commercial context, there must be clear evidence “that the contracting parties were specifically aware of the potential for consequential damages, such as for significant mental distress, before such damages are awarded for breach of the contract.” (Turczinski Estate v. Dupont Heating Air Conditioning Ltd. (2004), 2004 CanLII 35549 (ON CA), 246 D.L.R. (4th) 95 (Ont. C.A.) at para. 40). 162) With respect to tortious liability for mental distress, R.S. Smith J. commented that the recovery of damages is subject to the same policy considerations as recovery under breach of contract and is reasonably circumscribed. “... Recovery is only permitted where the damages are foreseeable consequence of the negligence and is founded on some physical injury or recognizable psychiatric illness”. (Lewis N. Klar et al, Remedies in Tort, looseleaf (Thomson Canada Limited, 1987) vol. 2, ch. 16 at para. 218). 163) As noted, the situation in which Ms. Schira found herself arising from the breaches, or acts and omissions of the various defendants, extracted an emotional toll. However, there is no evidence that the distress that she experienced constituted a physical injury, or a recognized psychiatric illness. She, accordingly, cannot be compensated under this head of damages, whether under tort or breach of contract. (b) Aggravated Damages 164) Aggravated damages are sought against all the defendants. These damages are awarded in cases of intentional wrongdoing that causes intangible injuries such as distress, humiliation or hurt feelings. They are not intended to punish the wrongdoer, but rather to compensate the victim. 165) am satisfied that the tortious conduct of all of the defendants, Mr. and Mrs. Karpinski, Ms. Mui and Mr. Jacobucci, caused Ms. Schira considerable distress, anxiety and emotional turmoil. She believed that she was purchasing her dream home. Instead, she found herself in situation of utter disruption for years and without the financial resources to simply have the problems fixed. Her mental well-being suffered, and her relationships with those closest to her were impaired. Merely compensating Ms. Schira for her labour and the expenditures made by her does not adequately reflect the injuries and damages that she sustained because of the combined conduct of the defendants. 166) There will be an award for aggravated damages, with respect to all defendants, in the amount of $10,000. (c) Punitive Damages 167) Ms. Schira is asking that punitive damages in the amount of $100,000 be awarded against Mr. and Mrs. Karpinski, and Mr. Jacobucci and Trevi Holdings Ltd. Punitive damages are non-compensatory. They are restricted to advertent wrongdoing that is so deliberately malicious and outrageous that it is deserving of punishment on its own. The threshold is high.The law in this area was recently summarized by Smith J.A. in Lynch v. Hashemian, 2006 SKCA 126 (CanLII), 289 Sask. R. 105 at para. [18] The objective of punitive damages is to punish the defendant rather than compensate plaintiff, whose just compensation will already have been assessed. They are confined to exceptional cases where the defendant’s conduct was so malicious, oppressive and high-handed that it offends the court’s sense of decency. See Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130. In Whiten v. Pilot Insurance Co., supra, at paras. 100-101, Binnie J. enunciated test of “rationality”, explaining that punitive damages should only be awarded where the misconduct of the defendant is so outrageous that punitive damages are rationally required to act as deterrence in the future. The test of rationality is to be applied both to the question of the availability of punitive damages and to the quantum. Thus, for example, if compensatory damages are adequate to punish and deter the defendant, punitive damages will not be awarded. In this sense, the quantum of punitive damages serves as “topping up” award to achieve the goals of punitive damages, and, in particular, deterrence both general and specific. 168) The conduct of both Mr. and Mrs. Karpinski, and that of Mr. Jacobucci, when completing the PCDS and in making negligent or false representations regarding the condition of the house was in error, and sufficient to attract liability for breach of contract and in tort. However, am not persuaded that their conduct, taken as whole, in so far as it relates to their dealings with Ms. Schira prior to the commencement of this litigation, was so egregious that punitive damages are rationally required as retribution and as deterrence. 169) This aspect of Ms. Schira’s claim for damages is accordingly dismissed. 170) Solicitor and client costs are claimed by Ms. Schira. Such costs are unusual. The principles which lay the foundation for such an award are found at para. 118 in Bawolin v. Siemens, 2002 SKCA 84 (CanLII), 219 Sask. R. 282. There Jackson J.A. said: ... 1. solicitor and client costs are awarded in rare and exceptional cases only; 2. solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously as scandalous, outrageous or reprehensible; 3. solicitor and client costs are not generally awarded as reaction to the conduct giving rise to the litigation, but are intended to censure behaviour related to the litigation alone; 4. notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party complete indemnification for costs reasonably incurred. 171) The foregoing principles were considered and explained more recently in Lynch, supra. Smith J.A. said at para. [32] In the course of her analysis Jackson J.A. had noted divergence in the case law on the question of whether solicitor-client costs should be awarded to mark the court’s disapproval of the conduct which had given rise to the litigation or whether they should be confined to condemnation of conduct in relation to the litigation itself. Clearly, point in the principles enunciated reflects general conclusion in favour of the latter position. It would appear that the exception set out in point 4, then, relates to those exceptional cases where the principle of indemnification for the wrongdoing (and not merely disapproval, however strong, of the wrongdoing) justifies such an order. 172) Smith J.A. further noted at para. 33 in Siemens, supra, that the award of solicitor-client costs was upheld on the basis of both the third and fourth principles to punish the defendant for “convoluted, confusing, inconsistent and dishonest evidence” prior to and during the trial, and also to fully indemnify the plaintiff for costs reasonably incurred for what was found, in that case, to be breach of fiduciary duty in circumstances where no order for punitive damages had been made. 173) It is important to consider some of the facts in Siemens, supra. There it was found that the defendant deceived the plaintiffs and misappropriated property in breach of his fiduciary duty. The plaintiffs were put to enormous cost, both before and during the trial, due to the conduct of the defendant. Smith J. (as she then was) found that the plaintiffs should be fully indemnified for the costs incurred solely as the result of the defendant’s dishonest and reprehensible behaviour in breach of his duty. These circumstances made it one of those exceptional cases where solicitor-client costs were warranted. Second, in making the award, Smith J. also relied on the inconsistent, convoluted and dishonest evidence of the defendant which she found to be worthy of censure. 174) In my view, this case is not one of such exception that it would fall within the ambit of the fourth principle found in Siemens, supra. There was no breach of fiduciary relationship and no misappropriation of funds. As to the third principle, the evidence of Ms. Mui, as well as Mr. and Mrs. Karpinski was at times confusing and inconsistent. It was also at times misleading and reconstructed. To lesser extent, Mr. Jacobucci’s evidence was evasive and inconsistent. While this conduct, during the trial, is deserving of censure, am not persuaded that an award of solicitor-client costs is warranted. 175) In these circumstances, Ms. Schira will have her costs in the normal fashion up to the commencement of the trial. Thereafter, she will have costs at the rate of 150 per cent of the usual tariff. Conclusion 176) While Mr. and Mrs. Karpinski are liable for breach of contract, each of the defendants is a tortfeasor, each having breached an obligation or duty owed to Ms. Schira, whether through negligence or misrepresentation. Their wrongful acts and omissions all contributed to the same damage. In that respect, their liability is concurrent. The liability of Mr. and Mrs. Karpinski and Mr. Jacobucci is joint, and that of Ms. Mui is several. As concurrent tortfeasors, the fault for the damage shall be apportioned equally among the four of them. 1. Ms. Schira shall have judgment against the defendants in the amount of $49,608.87. 2. Ms. Schira is entitled to pre-judgment interest under The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2 calculated from February 8, 2000. 3. Ms. Schira shall have her assessed costs up to the commencement of the trial. Thereafter she shall have her costs at the rate of 150% of the usual tariff. J. M-E. Wright J. QUEEN’S BENCH FOR SASKATCHEWAN Date: 2009 12 03 Citation: 2009 SKQB 394 Docket: Q.B. No. 365 of 2000 Judicial Centre: Saskatoon BETWEEN: SYLVIA SNIDER (now Sylvia Schira) and EDWARD KARPINSKI, VERL KARPINSKI, CECILIA MUI, 100% REALTY ASSOCIATES LTD., operating as RE/MAX SASKATOON, MARIO JACOBUCCI AND TREVI HOLDINGS LTD., operating as MARIO JACOBUCCI REALTY Counsel: G. D. Dufour for the plaintiff R. Borden for the defendants, Edward Karpinski, Verl Karpinski, Mario Jacobucci and Trevi Holdings Ltd. G. Thompson and K. Smith for the defendants Cecilia Mui and 100% Realty Associates Ltd. December 3, 2009 CORRIGENDUM M-E. WRIGHT J. to October 6, 2009 Judgment (2009 SKQB 394) 177) Pursuant to Queen’s Bench Rule 343A, my judgment of October 6, 2009 is amended at para. [176], clause 1, as follows: 1. Ms. Schira shall have judgment against the defendants in the amount of $49,608.87. This amendment is necessitated by reason of my failure to include in the final calculation of damages the cost for repairs yet to be completed. This amount, $6,995.41, is referred to at para. [152] of the judgment. J. M-E. Wright J.

The plaintiff bought a house. She used the services of Cecilia Mui, a realtor associated with the defendant 100% Realty Associates Ltd. operating as Re/max Saskatoon. The house was purchased from the defendants Edward and Verl Karpinski. The vendors' realtor was the defendant, Mario Jacobucci, owner of the defendant Trevi Holdings Ltd. The house did not meet the plaintiff's expectations. She now sues the defendants seeking recovery of damages for alleged latent defects. She claims Ms. Mui fell below the standard of care required of a realtor representing a purchaser. She claims Ms. Mui was negligent in misrepresenting certain facts and breached the fiduciary duty expected of her. The plaintiff claims the Karpinskis misrepresented facts to her, negligently and fraudulently. The plaintiff claims that Mr. Jacobucci and his company are liable to her in damages, both in negligence and as parties to the misrepresentations made by the vendors. Special and general damages are claimed as are aggravated damages and punitive damages. The trial took place over 22 days, spanning several years and included testimony from 14 witnesses. Two main issues are raised. The first is the liability of each of the defendants. The second issue is quantum of damages. The credibility of the parties is at the forefront of the determination of the issues. HELD: The vendors are liable to the plaintiff for breach of contract. Each of the defendants is a tortfeasor, each having breached an obligation or duty owed to the plaintiff, whether through negligence or misrepresentation. Their wrongful acts and omissions all contributed to the same damage. In that respect their liability is concurrent. The liability of the vendors and Mr. Jacobucci is joint, and that of Ms. Mui is several. As concurrent torfeasors, the fault for the damage shall be apportioned equally among the four of them. 1) Credibility is not a science, see R. v. Gagnon, 2006 SCC 17. It is not always possible to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events. The principles and tools to be used in assessing credibility are summarized in Novak Estate (Re), 2008 NSSC 283. 2) Certain of the evidence of the Karpinskis and Ms. Mui is so unreliable that the whole of their evidence is cast with doubt. 3) The opinions and conclusions of Mr. Loraas and Mr. Epp are accepted by the court. They are professionals with no interest in the outcome of the action. Their evidence was largely unchallenged. The Court finds that the pine shakes were rotten, sealant had been applied to the shakes on at least two occasions and prior to the plaintiff offering to buy the property, the shakes were not properly installed allowing water to seep into the house, the skylight leaked and caulking had been applied to stop the leaking before the plaintiff offered to buy the house, there was improper and inadequate venting which resulted in moisture damage to the interior of the house and mold in the attic, the moisture damage in the house included damage to drywall and paint blisters. Nail pops throughout the house were largely the result of the house being moved. No inspection was done after the house was moved. 4) The Court finds the Karpinskis did not speak truthfully or completely when they answered the questions in the Property Condition Disclosure Statement (PCDS). The Court does not accept that the vendors were not aware of water and moisture damage arising from the improperly installed shingles, the missing ridge caps, the leaking skylight or the lack of venting. The sealant on the roof was sufficiently old to predate the plaintiff's purchase of the house. The vendors repaired the sink holes and moisture pockets and effectively concealed the problems. It should have been disclosed. Although the vendors denied knowing of the structural damage to their house, they knew the house had been cut in half and moved 300 kilometers and had sustained damage. The structural problems were concealed by the vendors through repairs to the dry wall, reinforcement at stress points, and repainting and patching of wall paper. The fact that the house had been cut in half and moved should have been disclosed on the PCDS. 5) It is not only current defects or ongoing problems that need to be disclosed on a PCDS. A prospective purchaser does not look to the PCDS only to ascertain that the roof is not leaking on the day it was signed, see Kaufmann v. Gibson, [2007] O.J. No. 2711 (Ont. S.C.) (QL). The Karpinskis are liable to the plaintiff for breach of contract for failing to disclose the existence of structural defects, damage due to water and roof leakage. The terms of the PCDS formed part of the agreement between the parties and the deliberate withholding of this information amounted to a false representation as to the condition of the home. With respect to damage arising from these defects, the doctrine of caveat emptor does not apply. 6) The requirements for negligent misrepresentation have been established by the plaintiff. The failure to disclose, or silence as to a known defect, amounts to an act of concealment of a material fact and has the same effect as an express misrepresentation and is sufficient to attract liability, Thomas v. Blackwell, 1999 SKQB 168. 7) The false representations knowingly made by the vendors and their silence as to material facts were fraudulent. 8) Ms. Mui was negligent and her conduct and advice to the plaintiff fell below the standard of care expected of a realtor acting for the purchaser of a rural property in 1999. She did not conduct any preliminary background checks with the Rural Municipality, which would include determining if proper permits had been obtained, prior to the plaintiff's offer to purchase. Ms. Mui did nothing more than merely mention a home inspection to the plaintiff on one occasion. At no time did she recommend a home inspection even after she knew the house had been moved and before the condition regarding a satisfactory PCDS was removed. Another reason to strongly recommend a home inspection would be in circumstances where the realtor knew that a rural municipality did not require building inspections and Ms. Mui knew this to be the case. The plaintiff relied on the representation of Ms. Mui to her detriment. Had Ms. Mui disclosed all material facts to the plaintiff and explained and recommended a home inspection, the Court is satisfied that the outcome for the plaintiff would have been different. Knowing the house had been moved and had not been inspected the plaintiff would have most likely reconsidered her decision to purchase. 9) The Court is satisfied that Mr. Jacabucci is liable to the plaintiff for negligent misrepresentation. He represented that the home was of 'quality construction'. This was incorrect. Mr. Jacobucci was also complicit in, and party to, the negligent misrepresentations made by the vendors in the PCDS. He knew the house had been moved and sustained damage. He also knew the skylight leaked. The plaintiff relied on these misrepresentations and damages resulted. 10) The costs incurred by the plaintiff to repair the house total $17,613. She is awarded $15,000 as compensation for personal time and effort that she expended in repairing the home. There is no evidence that the distress the plaintiff experienced constituted a physical injury, or a recognized psychiatric illness and she cannot be compensated for mental distress, whether under tort or breach of contract. She is awarded $10,000 for aggravated damages. Her claim for punitive damages is dismissed. Her claim for solicitor and client costs is dismissed. Corrigendum received dated December 3, 2009 and added to fulltext.

6_2009skqb394.txt

Information #39981704 2007 SKPC 27 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT SASKATOON, SASKATCHEWAN Between: HER MAJESTY THE QUEEN [E.C.] Matthew Miazga for the Crown Tracey Buffalo for the Accused M.L. Gray, PCJ April 17, 2007 Introduction [1] [E.C.] stands charged that on September 26, 2006 at the City of Saskatoon, Saskatchewan, he did commit an assault on [A.G.], contrary to Section 266 of the Criminal Code. [2] On the trial date, the Crown applied to have admitted in evidence oral statements made by the complainant to her neighbour and to the police on September 26, 2006 for consideration of the truth of their contents. Evidence was then called on voir dire. [3] This application is pursuant to line of cases which create an exception to the rule which presumptively excludes hearsay evidence. In accord with these cases, hearsay statements may be admitted on principled basis, the governing principles being reliability and necessity. [4] The facts are relatively straight-forward. The complainant, [A.G.], is the common- law spouse of the accused and had been for seven years. In September of 2006, they lived in an apartment building next door to [D.P.], friend of Ms. [A.G.]’s daughter. Ms. [D.P.] had known the complainant for about 10 years and the accused for five or six. [5] On September 26, 2006, Ms. [D.P.] returned home from work sometime after 10:00 p.m. From the [G.]/[C.] apartment next door, she heard the sounds of an argument; in particular, she could hear the complainant yelling but could not make out the words spoken. She did not hear any sounds of party or of struggle. [6] Sometime after this, Ms. [A.G.] came to her door asking that she call 911. Ms. [A.G.] did not have telephone at her own suite. [7] When the complainant came to the [P.] apartment, she was very upset, scared and crying. Ms. [D.P.] called the police as requested and advised that her neighbour was having problems with her boyfriend and wanted him removed. She offered to shelter the complainant until the police arrived. [8] Once the call had been made, the complainant explained that she and the accused had an argument over bank card. During the course of this dispute, he put his hands on her neck in an attempt to strangle her. Ms. [A.G.] demonstrated this for Ms. [D.P.]. She said she was sitting in chair when this happened and she tipped over; she did not say how she got free. The complainant reiterated that she wanted the accused gone. [9] Ms. [D.P.] saw red mark on the right side of the complainant’s neck. [10] The police arrived within about five minutes of the call to 911. Ms. [D.P.] heard the complainant tell the police the same things she had been told. The complainant was upset and continued to cry throughout the time she was at the P. home. [11] Officers Gutek and Penner responded to the call made by Ms. [D.P.] and met with both women about 11:30 p.m. [12] They, too, describe Ms. [A.G.] as being distraught and crying and that her emotional state remained the same throughout their dealing with her. They spoke for some 10-15 minutes with Ms. [A.G.] crying throughout. She related to the officers that the accused had confronted her about having his bank card then grabbed her by the neck and threw her on the floor. She pointed to 4" vertical mark below her right ear which was still red, as well as red mark on her chest which she said came from being held down on the floor. Cst. Gutek had strong feeling she was “somewhat intoxicated” based, in part, on her statement that she had been drinking beer for three hours. He accepted her complaint as truthful because it was consistent with the marks he saw on her neck and chest. [13] Upon receiving this information and obtaining permission from Ms. [A.G.], the officers went to the [G.]/[C.] residence where they found the door ajar and the accused asleep or passed out in the back bedroom. Mr. [E.C.] was described as having slurred speech, bloodshot eyes and “verbally aggressive”. He repeatedly stated that this could have been avoided if “she had given me back my bank card”. [14] Cst. Gutek also explained to Ms. [A.G.] that she should attend to the police station to provide statement and have photographs taken of her injuries. She did not do so. [15] Ms. [A.G.] was called to testify on the voir dire and said that she loves [E.C.] and does not want to see him get into trouble. She said that she had no recollection of the night in question because she was very intoxicated and the whole night is “blur”. Specifically, she did not remember going to her neighbour’s or having any injury. Her memory was not assisted by hearing the tape of the 911 call, although she did recognize the voice of [D.P.]. [16] The Crown has made an application to have the initial statements made by the complainant admitted into evidence, for the truth of their contents, as an exception to the hearsay rule. The tests for the admissibility of such statements are determination of necessity and reliability R. v. Smith (1992), 1992 CanLII 79 (SCC), 75 C.C.C. (3d), 257 at 271 (S.C.C.). The onus on the party seeking to tender the statement is on balance of probabilities. [17] With respect to the test of necessity, number of cases have held that this test is met when witness recants or in some other fashion effectively holds hostage evidence that cannot be obtained from another source. [18] As stated by Moen, J., in paragraph 11, of R. v. Mousseau, 2002 ABQB 311 (CanLII), 2002 AB QB, 311: In both K.G.B. and R.v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] S.C.R. 764 (hereinafter “F.J.U.”), the majority of the Supreme Court held that the necessity test was met when witness recanted on an earlier statement. The earlier statement was necessary evidence because evidence of the same quality could not be obtained at trial. The fact that witness is available at trial does not preclude the prior statement from being ‘necessary’. [19] In the case at hand, it is clear that Ms. [A.G.]’s evidence is important to the Crown’s case and there is no other means of obtaining that evidence. Whether her alcohol consumption that night erased her recollection of events or whether she is a hostile witness is immaterial at this stage. Either way, she effectively holds hostage that evidence and the court need not determine the reason for the purpose of this application. [20] Accordingly, the court finds that the test of necessity has been met. [21] Turning to the requirement of reliability, the law is evolving and it is not only in situations where statements are recorded on video and taken under oath that there might be found sufficient indicia of reliability. Indeed, in R.v. Khan, 1990 CanLII 77 (SCC), [1990] S.C.R. 531 and R.v. Smith (supra), statements made to ordinary citizens were admitted as an exception to the hearsay rule. Most recently, the Supreme Court of Canada in R.v. Khelawon, 2006 SCC 57 (CanLII), held that in determining reliability, regard should be had for the presence or absence of supporting or contradictory evidence. This overturns the earlier decision of R.v. Starr, 2000 SCC 40 (CanLII). [22] In R.v. U.(F.J.), (supra.), the Supreme Court of Canada identified three concerns about the reliability of hearsay evidence: (i) it is not subject to contemporaneous cross-examination; (ii) it is not given under oath; (iii) the trier of fact does not have an opportunity to observe the declarant in the making of the statement. [23] At paragraph 48 of R.v. Khelawon, Charron, J., writing for the Court, says: ... our adversary system is based on the assumption that sources of untrustworthiness or inaccuracy can best be brought to light under the test of cross-examination. It is mainly because of the inability to put hearsay evidence to that test, that it is presumptively inadmissible. However, the constitutional right guaranteed under s. of the Charter is not the right to confront or cross-examine adverse witnesses in itself. The adversarial process, which includes cross-examination, is but the means to achieve the end. Trial fairness, as principal of fundamental justice, is the end that must be achieved. Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: see R.v. Mills 1999 CanLII 637 (SCC), [1999], S.C.R. 668, at paras. 69-76. In the context of an admissibility inquiry, society’s interest in having the trial process arrive at the truth is one such concern. [24] The question then becomes whether there are sufficient indicia of reliability in any particular case to substitute for the lack of oath, lack of cross-examination and absence of video taping. Where the hearsay statement was made in circumstances which provide some guarantees of trustworthiness, the test for reliability will be met. [25] In R.v. Acoose, [1993] S.J. No. 93, decision of Rathgeber, P.C.J., the complainant testified that she had no recollection of an assault, nor did she remember giving statement to the police. The court held that her initial statement was admissible for consideration of the truth of its contents because certain aspects of that statement were independently verified. [26] In R.v Simpson, [1999] N.W.T.J. No. 20, the court allowed the hearsay statements of complainant on the basis of the res gestae exception. These statements were made to three different people within 15 minutes of the event; all were consistent. The court made obiter comments that these statements would have been admissible pursuant to the decision in Khan. [27] In R.v. LaChappelle, 1995 CanLII 5684 (SK QB), [1995] S.J. No. 246, the court found the following to be indicators of reliability: only the accused and the complainant were present in the apartment, the complainant had fresh injury which was bleeding, there was fresh blood on the floor and the complainant was very upset with the accused. The court held that the complainant’s statement that the accused had hit her would have been admitted into evidence but for the officer’s opinion that she was too intoxicated to provide credible statement. [28] In R. v. Nickerson, [1996] N.S.J. No. 342 the court relied on the following indicia of reliability: statements were taken separately from three witnesses, those statements were corroborative of each other, the witnesses understood the importance of telling the truth and an experienced officer testified that he accurately recorded what the witnesses said to him. [29] In R.v. Pritchett, [1995] O.J. No. 3277, hearsay statement was allowed into evidence based on the following indicia of reliability: the complainant made an unexpected visit to her friend, she had no motive to lie, she was upset and crying, she had physical mark consistent with an assault, and she stated that the accused had punched her. Further these statements were made contemporaneously and spontaneously to friend without any apparent guile. The court on appeal also pointed to the accused’s subsequent jealous and possessive behaviour as further indicator of reliability. [30] The above cases are instructive as to the type of evidence that might be considered supportive of trustworthiness. Conclusion [31] The following circumstances are evidence supportive of the trustworthiness of the statements made by [A.G.] on September 26, 2006:(i) she arrived unexpectedly at her neighbour’s apartment, around 11:30 at night;(ii) she was upset and crying;(iii) she asked that the police be called;(iv) she spontaneously described and demonstrated the incident which brought her to her neighbours and prompted the report to the police;(v) she repeated a consistent version to the police;(vi) she had fresh red marks on her neck and chest, which corresponded with her description;(vii) she reported that the incident began with a quarrel about a bank card;(viii) the accused verified this aspect of her complaint with his comments about the bank card;(ix) a bank card in the name of [A.G.] was found in the possession of the accused; and(x) the evidence supports the inference that the complainant and the accused were alone in their apartment from the time Ms. [D.P.] arrived home to the time Ms. [A.G.] came to her door. [32] Given the above circumstantial guarantees of trustworthiness, the statements made by Ms. [A.G.] are found to be reliable on a balance of probabilities and are, therefore, admissible.

The accused is charged with assault contrary to s. 266 of the Criminal Code. The Crown applies to admit into evidence oral statements made by the complainant to her neighbor and to the police for consideration of the truth of their contents. HELD: The statements made by the complainant are found to be reliable and are therefore admissible. 1) Hearsay statement may be admitted on a principled basis, the governing principles are reliability and necessity. A number of cases have held that necessity is met when a witness recants or in some other fashion effectively holds hostage evidence that cannot be obtained from another source. 2) There is no other way to obtain the complainant's evidence. Whether her alcohol consumption that night erased her recollection of events or whether she is a hostile witness is immaterial at this stage. Either way she effectively holds hostage that evidence and the court need not determine the reason for the purpose of this application. The test of necessity has been met. 3) With regard to reliability, the question becomes whether there are sufficient indicia of reliability in a particular case to substitute the lack of oath, lack of cross-examination and absence of video taping. Where the hearsay statement was made in circumstances which provide some guarantees of trustworthiness, the test for reliability will be met. The following circumstances are evidence of trustworthiness: the complainant arrived unexpectedly at her neighbor's apartment, she was upset and crying, she asked that police be called, she spontaneously described the assault, she repeated a consistent version to the police, she had fresh red marks which corresponded with her description of the assault and the accused verified aspects of her complaint with comments he made.

d_2007skpc27.txt

Bankruptcy No. 3304 Estate No. 024011 J.C.R IN THE QUEEN’S BENCH PROVINCE OF SASKATCHEWAN IN BANKRUPTCY IN THE MATTER OF THE BANKRUPTCY OF MARCEL ERNEST JOBIN W. John Hampton, for the bankrupt W. Brent Gough, for the objecting creditor, the Trustees of the Saskatchewan Student Aid Fund Marla Adams, Deloitte Touche Inc., trustee JUDGMENT MAURICE J. HERAUF December 4, 1997 Registrar in Bankruptcy [1] The bankrupt obtained Bachelor of Science degree in Chemistry and an Advanced Certificate in Science-Physio as result of student loan funding. In addition, the bankrupt successfully completed four years toward degree in Veterinary Medicine. His reason for not finishing the final year in Veterinary Medicine was that he had obtained the maximum amount allowed by student loans and was financially unable to complete the final year. As result of student loan funding, the bankrupt is indebted to Canada Student Loans in the amount of $22,338.99 and Saskatchewan student Loans in the amount of $18,241.39. The Saskatchewan program has objected to the automatic discharge of the bankrupt. [2] It appears that student loans represent 100% of the provable claims of unsecured creditors. To his credit the bankrupt paid total of $6,074.92 toward his Saskatchewan loan between November 1994 and April 1996. [3] Since 1994, the bankrupt has been primarily employed as taxi-driver. The bankrupt repeatedly made it clear that he is satisfied with his current occupation and is somewhat reluctant to leave secure employment for uncharted waters. His rationale is succinctly set out in letter he filed with the Court. The letter is as follows: “Dear Sir/Madame, It seems that you feel with my degrees obtained have some sort of potential for greater earnings in the future. Numerous times have made attempts to find degree-related job Mining/Chemical companies etc. and have been turned down. At this point in my life (30 years of age) would find it most unlikely to throw away my years of Taxi-driving experience and business relations to take chance on employment that may not offer better wages. Not to mention, it's been years since graduated and have forgotten much of what was taught. have since developed new skills, as driver/mechanic and am content with my present employment." [4] The bankrupt is just shy of his 30th birthday. He is living at home and hence his rent and food expenses are very reasonable. He is single with no dependents. The bankrupt's net income is modest and well below the superintendents guideline for single person. [5] Counsel for the objecting creditor contends that even though the bankrupt's income is minimal, he still has the capacity to make small payment toward his obligations. The trustee, on the other hand, recommends an absolute discharge. [6] After carefully considering the submissions and bearing in mind the objects and principles of the Bankruptcy and Insolvency Act, I have reluctantly concluded that an absolute order of discharge is appropriate. [7] While am not impressed with the bankrupt's attitude, it would be futile to impose conditional order of discharge in this situation due to the bankrupt's low income. The bankrupt is obviously very intelligent and capable individual. sincerely hope that he somehow finds way to complete his degree in veterinary medicine at some point in the future. [8] There will be an order granting the bankrupt an absolute order of discharge with no order as to costs. Registrar in Bankruptcy

The applicant sought an order requesting an absolute order of discharge in bankruptcy. The bankrupt was indebted to Canada Student Loans and Saskatchewan Student Loans. He had obtained a Bachelor of Science degree but was unable to complete his final year of Veterinary Medicine because he had received the maximum amount of financing available. The bankrupt had been employed for 5 years as a taxi driver earning a less than average income; he lived at home with his parents; he was single with no dependents. He was reluctant to leave secure employment in an effort to obtain employment related to his educational qualifications. Counsel for the objecting creditor argued that the bankrupt had a minimal income and had the capacity to make small payments toward his obligation. HELD: An absolute order of discharge was granted in accordance with the principles of The Bankruptcy and Insolvency Act.

6_1997canlii9949.txt

2006 SKPC 48 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT LA RONGE, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN M. young person within the meaning of The Youth Criminal Justice Act May 5, 2006 W.K. TUCKER DECISION [1] horrible event has taken place which has resulted in serious injury to member of this community. Several individuals have told the police that the accused youth is responsible for those injuries. [2] The Crown has conceded that there is no reason to detain the accused youth to ensure her attendance in court, or to prevent further offences on her part. [3] The Crown has argued, in essence, that its case is strong, the offence is horrible, and that the public in La Ronge and area are so disturbed and shocked by the occurrence, that to release the youth would cause loss of confidence in the administration of justice on the part of the public. [4] In effect, the Crown says that because several persons have told the police that this youth committed a serious offence, I should confine her in custody even before she has a trial, before anyone has given evidence against her, under oath, in a court of law, and before she has had a chance to defend herself at a trial. The Crown believes should do this because the public in La Ronge and area will feel the justice system has failed if do not keep her locked up until she has trial. [5] do not agree with the Crown position. [6] As mentioned above, the Crown Prosecutor has stated, fairly and correctly, that there is no evidence at all that this youth will be danger if released, or that her release will cause any other danger to the community. [7] believe the public in La Ronge and area is aware that every person is presumed to be innocent until he or she is proven guilty at trial. I believe that the public is aware that we do not keep a person in custody simply because they are accused of committing an offence. There must be a necessary and substantial reason to keep a person in custody before they have a trial. [8] If the youth is convicted at trial, the public is aware that the appropriate sentence, according to law, will be imposed. The police have investigated, and are still investigating, the circumstances surrounding the injuries to the victim, and the legal process is underway. do not accept that the public demands that person be confined in custody without good reason. [9] The Crown has suggested that this incident is the third, recent, serious offence to take place in our community, and that fact has made the public anxious and concerned about crime and public safety. He refers to the recent crimes committed at La Ronge area motel, robbery at local financial institution, and the present matter. [10] knowledgeable and responsible member of the public will be aware that there is no apparent or suggested connection between the three incidents referred to by the Crown, and that the offender in one of the incidents has been apprehended, has pleaded guilty, and has been remanded pending sentence. [11] believe that the public will recognize that the previous two matters, while deeply disturbing to the community, are not related to the present charges or accused youth in any way. [12] do not agree that the release of this youth will create lack of confidence in the administration of justice because of the occurrence of unrelated crimes by unrelated persons. [13] I will release the youth on strict conditions which will continue until her trial is completed. Dated at La Ronge, Saskatchewan, the 5th day of May, 2006. Wilfrid K. Tucker Judge of the Provincial Court of Saskatchewan

The Crown asks that the accused youth be detained. The Crown concedes that there is no reason to detain the accused youth to ensure her attendance in court or to prevent further occurrences. The Crown asks that she be detained because the crime is so horrible, the case is so strong and the public in La Ronge are so disturbed and shocked by the occurrence that to release the youth would cause a loss of confidence in the administration of justice. HELD: The court does not keep a person in custody simply because they are accused of committing an offence. There must be a necessary and substantial reason to keep a person in custody before they have a trial. The accused youth will be released on strict conditions that will continue until her trial is complete.

7_2006skpc48.txt

C.A.C. No. 108237 NOVA SCOTIA COURT OF APPEAL Chipman, Freeman and Roscoe, JJ.A. BETWEEN: HER MAJESTY THE QUEEN and JOHN WAYNE MacLENNAN Respondent Robert C. Hagell for the Appellant Curtis C. Palmer, Esq. for the Respondent Appeal Heard: January 30, 1995 Judgment Delivered: February 20, 1995 THE COURT: The appeal is allowed, the conviction restored. Notices of contention dismissed. Freeman, J.A.: While constable Karen Byrne of the Royal Canadian Mounted Police and her partner were patrolling in police vehicle on Commercial Street in New Minas, Kings County, on the evening of June 21, 1993, they fell in behind vehicle in which they saw the passenger putting on his seat belt. It is an offence under the Motor Vehicle Act for the passenger not to have been wearing it. Constable Byrne turned on her emergency lights and the vehicle pulled over at about 10:45 p.m. Constable Byrne asked the respondent to accompany her back to the police cruiser. From her observations of him she concluded that he was impaired by alcohol and gave him the breathalyzer demand without requiring test with an ALERT screening device. The driver subsequently failed the breathalyzer test. The Issues He was convicted of driving with an illegal blood alcohol level after trial in Provincial Court. His summary conviction appeal to the Supreme Court was allowed on the basis that he had been arbitrarily detained contrary to s. 9 of the Canadian Charter of Rights and Freedoms. His counsel had argued that his s. right to be free of unreasonable search and seizure had been infringed. The Crown has appealed on the ground that the summary conviction appeal court erred respecting arbitrary detention and the exclusion of evidence of the breathalyzer result under s. 24(2) of the Charter. The respondent has filed notices of contention alleging the trial judge erred in finding Constable Byrne had reasonable and probable grounds for breathalyzer demand, and that the respondent's right to counsel under s. 10(b) of the Charter was infringed. The major concern in the context of the alleged Charter infringements is that the police officer based her conclusions for the breathalyzer demand on observations made after she requested that the respondent accompany her from his own car to the police cruiser. The respondent argued this was search contrary to s. of the Charter. The Facts The respondent, John Wayne MacLennan, whom Constable Byrne had not known previously, was the driver of the vehicle. He pulled over in response to the emergency lights and opened the door as she approached his side of the car. She asked him if the window worked and he closed the door and opened the window. "Immediately," she said, "I could detect the odour of alcohol quite strongly coming from the vehicle and asked Mr. MacLennan where he had been and where he was going. He was bit evasive about that." Mr. MacLennan was entitled to remain silent. Questioning by police which might conscript the detained person against himself is improper at this stage, when the right to counsel under s. 10(b) of the Charter is suspended. On cross examination she said that "When stopped Mr. MacLennan could detect alcohol in, coming from the area of the vehicle, that's why brought him back to the car so could determine that that was not just from the vehicle as there had been beer spilled on the floor of the vehicle." Once she got him back to the police car she was able to say there was an odour of alcohol coming from Mr. MacLennan. Constable Byrne gave Mr. MacLennan the breathalyzer demand and then read him his rights to counsel under the Charter from prepared form. This was at about 10:55 p.m. She said she gave him the demand because she thought he had been impaired in his driving by alcohol: "I felt that he had been consuming alcohol excessively. could smell the odour coming from him, that's why brought him back to the police car. He also was very slow, speech and movements, when he was looking for his documents he was fumbling and observed him to sway somewhat when he left his vehicle on the way to the police car." They proceeded to the detachment, arriving at 11:02 or :03 p.m. and Constable Byrne asked Mr. MacLennan if he wanted to contact lawyer. When he said he did not wish to do so. Constable Merrell, Constable Byrne's partner, administered the breathalyzer test. Mr. MacLennan failed. Both his readings were 170 milligrams of alcohol in 100 millilitres of blood, more than twice the legal limit of 80. Trial Result On these facts Mr. MacLennan was convicted after trial in Provincial Court by Judge Crowell. Constable Byrne was the only witness to testify. Judge Crowell made clear finding that she had reasonable and probable cause for making the demand. Summary Conviction Appeal The conviction was quashed by Justice MacDonald of the Supreme Court, sitting as summary conviction appeal court judge. He found that Mr. MacLennan's detention by Constable Byrne had been arbitrary and therefore infringed his rights guaranteed by s. of the Charter, which provides: "9. Everyone has the right not to be arbitrarily detained or imprisoned." Section of the Charter had not been specifically argued at trial, but the defence had argued s. 8: "8. Everyone has the right to be secure against unreasonable search or seizure." Justice MacDonald stated: "Counsel for the appellant argued that there was an improper search contrary to section of the Charter. The trial judge answered this with the following comments at p. 24 of the transcript: ‘Defence further argues that Rilling does not apply here because of the Charter breach that is an improper search under Section of the Charter. The Court is in agreement that Rilling is still good law unless there is Charter breach. Charter breach prior to the taking of the test would prohibit the introduction of the results of those tests. So the whole issue boils down to very simple one of whether or not the officer had reasonable and probable grounds. have already cited her basis for her opinion.' In this case, do not believe that section of the Charter can be answered without also examining section 9. in these circumstances there has to be 'stopping' before search can be initiated. 'stopping' can be detention and, if arbitrary, would be contrary to section 9. After 'stopping' search would begin when the constable looks into the detainee's motor vehicle and, without grounds would be unreasonable and contrary to section 8. On the evidence here, the learned trial judge did not give consideration to the potential application of section 9. It appears to me that the stopping of the appellant's motor vehicle was arbitrary and, therefore, the appellant was being 'arbitrarily detained' contrary to the Charter. It was from this arbitrary detention that the search (questions, requests and observations of the appellant) of the appellant was made, followed by the determination of the constable that there was 'reasonable and probable grounds' for the making of the demand. The gravamen of the case for the defence herein is not whether the constable had reasonable and probable grounds for making the demand, but whether there was breach of section of the Charter because the search only took place following the arbitrary detention of the Appellant‑‑a breach of section of the Charter. The Charter argument, although not too precise, was introduced by the appellant and believe that the introduction was sufficient to warrant consideration of sections and 24 by the court." Justice MacDonald did not consider whether the arbitrary detention was justified under s. of the Charter. ALERT Considerations The focus of inquiry in this appeal is on the period between the engagement of the police emergency lights and the decision whether or not to give the breathalyzer demand. While the issues were different in R. v. Bernshaw (S.C.C. Unreported‑‑January 27, 1995) the same time period was relevant and the Supreme Court of Canada made number of observations providing useful guidance. Not least of these is Justice Cory's compelling reminder of the reasons it is necessary to have strong drunk driving laws and an effective police presence on the highways: "Every year, drunk driving leaves terrible trail of death, injury, heartbreak and destruction. From the point of view of numbers alone, it has far greater impact on Canadian society than any other crime. In terms of the deaths and serious injuries resulting in hospitalization, drunk driving is clearly the crime which causes the most significant social loss to the country. Statistics Canada recently noted: Impaired driving is serious crime. Every year thousands of Canadians are killed and many more injured in traffic‑related accidents. Alcohol is contributing factor in an average of 43% of these cases...." The issues in Bernshaw arose from decision of the British Columbia Court of Appeal rejecting the results of an ALERT test when the police officer had not waited for fifteen minutes before administering it to allow for the dissipation of mouth alcohol, which might result from recent drink, burping or regurgitation, and which could cause an erroneous result. Sopinka J., writing for majority of the Court consisting of LaForest, Sopinka, Gonthier, McLachlin and Major, JJ., adopted the flexible approach proposed by Arbour J.A. of the Ontario Court of Appeal in R. v. Pierman; R. v. Dewald, (Ont. C.A., August 24, 1994), in which it was held permissible but not mandatory for police officers to wait fifteen minutes when aware of circumstances making the delay reasonable to ensure proper analysis of the breath. Sopinka J. acknowledged that the fifteen minute delay "unduly expands the detention without access to counsel" but stated: "Although there is no doubt that the screening test should generally be administered as quickly as possible, it would entirely defeat the purpose of Parliament to require the police to administer the screening test immediately in circumstances where the results would be rendered totally unreliable and flawed. The flexible approach strikes the proper balance between Parliament's objective in combatting the evils of drinking and driving, on the one hand, and the rights of citizens to be free from unreasonable search and seizure." Cory J., writing with the concurrence of Lamer C.J.C. and laccobucci J., held there was no basis for fifteen‑minute delay in any circumstances: "Since R. v. Thomsen, supra, this Court has repeatedly held that if driver is stopped by police officer, that driver is detained for the purposes of s. 10(b) of the Charter. The driver, accordingly, has the right to retain and instruct counsel. ... in R. v. Thomsen it was recognized that although the absence of the opportunity to retain counsel violated s. 10(b) of the Charter, it was justified under s. because it was urgent that the breath sample be obtained quickly in order to be effective. The right to retain counsel was incompatible both with the effective use of the ALERT device and with the purpose of demonstrating police presence which would convince drinking drivers that there was high probability that they would be quickly and readily detected. The section's use of the word 'forthwith' in the context of roadside screening test clearly indicated that there was to be no opportunity granted to driver to call lawyer. The test was to be performed immediately and to fail it had no penal consequences. It is testing device used to protect the public. Quite simply, it is not possible to conduct roadside test 'forthwith', that is immediately, and at the same time require the driver to be subject to detention which is sufficiently lengthy to provide an opportunity to retain and instruct counsel under s. 10(b) of the Charter. delay of that length without the right to instruct counsel might well not only be inconsistent with s. 10(b) of the Charter but also might be such that it could not be saved by s. 1. An impaired driver is potentially lethal hazard that must be detected and removed from the road as quickly as possible. The ability to administer the test immediately helps to protect the public by detecting those who may be danger. The relatively rare occasions on which an ALERT test may be erroneous as result of the driver consuming very recent drink must be tolerated in the interest of the safety of the public." Elsewhere in the decision, it was pointed out that if an ALERT test does result in an erroneous "fail", no penal consequences follow. The more accurate breathalyzer test will correct the ALERT error. Cory J. continued: “This requirement to undergo the ALERT testing immediately should be regarded as one of the obligations that flows from the right to drive. In Galaske v. O'Donnell, 1994 CanLII 128 (SCC), [1994] S.C.R. 670, at p. 686, it was noted that the driving of motor vehicle is neither God‑given nor constitutional right. Rather, it is privilege granted by license. Attached to every right are concomitant duties, obligations and responsibilities. This is true of the licensed right to drive. One of the prime responsibilities of driver is to see that reasonable care is exercised in the operation of the motor vehicle, and specifically, that it is driven in manner which does not endanger members of the public. That duty or responsibility cannot be fulfilled by an impaired driver who, by definition, endangers others. In furtherance of the duty not to endanger others, there exists an obligation to comply with police officer's reasonable request to supply breath sample. Complying with reasonable request to take an ALERT test is very small price to pay for the privilege of driving." While Constable Byrne did not find it necessary to give the ALERT demand in the circumstances of the present case, that was merely one of the options resulting from the same legislation and subject to the same rationale that were relevant in Bernshaw. The Motor Vehicle Act The ALERT demand is not the only price to be paid for the privilege of driving. It is also necessary to comply with the provincial motor vehicle legislation. Relevant provisions of the Nova Scotia Motor Vehicle Act R.S.N.S. 1989 c. 293 must be examined. It was first necessary for Constable Byrne to bring the respondent's motor vehicle to stop. Her authority to do so is found in s. 83 (1) (formerly s. 74(1)) which provides: "83(1) It shall be an offence for any person to refuse or fail to comply with any order, signal or direction of any peace officer." When this is read in the context of the common law authority of police to control traffic on the highways, other provisions of the Motor Vehicle Act and provisions of the Criminal Code, and note is taken of long standing customary practices, I am left in no doubt that s. 83(1) authorizes peace officers to require vehicles on the highway to come to a stop in response to an appropriate order, signal or direction. Comparable provisions in other provinces have been held not merely to impose duty upon drivers but to provide peace officers with corresponding authority. S. 119 of the Alberta Highway Traffic Act was considered by the Supreme Court of Canada in R. v. Wilson, 1990 CanLII 109 (SCC), [1990] S.C.R. 1291, where it was argued that it did not grant statutory authority for random stops. The court did not accept that contention. That section reads: "119 driver shall, immediately upon being signalled or requested to stop by peace officer in uniform, bring his vehicle to stop and furnish any information respecting the driver or the vehicle that the peace officer requires and shall not start his vehicle until he is permitted to do so by the peace officer." The court held: "Though s. 119 imposes duties upon motorists rather than conferring powers on the police, the language of this section is broad enough to authorize random stops of motorists by police officers. in contrast to the legislative provisions considered in Dedman v. The Queen, 1985 CanLII 55 (SCC), [1985] S.C.R. 2,],supra, s. 119 requires driver not merely to surrender his licence on demand, but when 'signalled or requested to stop', to 'bring his vehicle to stop and furnish any information respecting the driver or the vehicle that the peace officer requires'. Constable MacFarlane's actions in stopping the appellant were therefore statutorily authorized by s. 119 of the Highway Traffic Act." While s. 83(1) of the Nova Scotia Motor Vehicle Act, which is under Part of the Act respecting Traffic on the Highway, authorizes police officers to stop vehicles, it does not require drivers to furnish information. Once vehicle comes to halt further authorization must be sought elsewhere in the Act. It was held in Baroni (1989) 1989 CanLII 195 (NS CA), 91 N.S.R. (2d) 295 at p. 301: "I do not find that, after vehicle has effectively ceased to be part of the traffic moving on the highway and the driver has been detained, s. 74 can justify requirement that the driver perform coordination tests which conscript him against himself through evidence other than confession emanating from him." While randomly stopped driver cannot be conscripted against himself by way of statements or unauthorized tests, he or she can be properly asked to produce his license, permit and insurance. This provides an opportunity for police officer to make observations of the indicia of impairment passively emanating from the driver. Section 78 (2) of the Motor Vehicle Act provides: "78 (2) Every person shall have valid driver's license in his immediate possession at all times when driving motor vehicle and shall display the same at all reasonable times on demand of peace officer. (A provision similar to s. 78(2) was considered in Dedman and found insufficient, in itself, to justify random stops. Ontario did not have statutory provision similar to our s. 83(1) authorizing police to stop vehicles until the enactment of s. 189a(1) subsequent to Dedman.) S. 18 of the Motor Vehicle Act is similar provision with respect to vehicle permits. Proof that the driver carried liability insurance must also be produced. Police also have the right to stop vehicle to check its equipment and mechanical condition. In my view the authority of peace officers in Nova Scotia under ss. 83(1), 78(2) and s. 18 of the Motor Vehicle Act is equivalent to that of peace officers in Alberta under s. 119 of the Highway Traffic Act. Therefore consider Wilson to be binding authority in Nova Scotia. am also of the view that the authority of peace officers under s. 83(1) is essentially similar to that flowing from Section 189a(1) of the Ontario Highway Traffic Act, which provides: "189a(1) police officer, in the lawful execution of his duties and responsibilities, may require the driver of motor vehicle to stop and the driver of motor vehicle, when signalled or requested to stop by police officer who is readily identifiable as such, shall immediately come to safe stop." Therefore the pronouncements of the Supreme Court of Canada in such definitive cases as Dedman v. R, Hufsky v. 1988 CanLII 72 (SCC), [1988] S.C.R. 621 and Ladouceur v. R. 1990 CanLII 108 (SCC), [1990] S.C.R. 1257 are of binding authority with respect to the relevant provisions of the Nova Scotia Motor Vehicle Act. Random Stopping R. v. Dedman was decided year prior to the enactment of s. 189a(1) and two years prior to the Charter but the statement of former Chief Justice Dickson defining arbitrary detention in his dissenting judgment is convenient starting point for considering the laws as to random stops: Short of arrest, the police have never possessed legal authority at common law to detain anyone against his or her will for questioning, or to pursue an investigation. He cited R. v. Waterfield, [1963] All E.R. 659 (C.C.A.), as the case which is ". [O]ften relied upon as enunciating the test for the common law basis of police power. The English Court of Appeal stated at p. 661: In the judgment of this court it would be difficult, and in the present case it is unnecessary, to reduce within specific limits the general terms in which the duties of police constables have been expressed. In most cases it is probably more convenient to consider what the police constable was actually doing and in particular whether such conduct was prima facie an unlawful interference with person's liberty or property. If so, it is then relevant to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such duty, involved an unjustifiable use of powers associated with the duty. Thus, while it is no doubt right to say in general terms that police constables have duty to prevent crime and duty, when crime is committed, to bring the offender to justice, it is also clear from the decided cases that when the execution of these general duties involves interference with the person or property of private person, the powers of constables are not unlimited. Waterfield has been applied by this Court in R. v. Stenning, 1970 CanLII 12 (SCC), [1970] S.C.R. 631 and Knowlton v. The Queen, [1974] S.C.R .443, and in two English cases of note, Hoffman v. Thomas, [1974] All E.R. 233 (Q.B.D.), and Johnson v. Phillips, [1975] All E.R. 682 (Q.B.D.)." The majority in Dedman applied Waterfield in concluding that, in the context of Ontario's R.I.D.E. program there was common law authority in police officers to stop vehicles at random. in the course of the court's analysis the following observation was made with respect to police powers: "It has been held that at common law the principal duties of police officers are the preservation of the peace, the prevention of crime, and the protection of life and property, from which is derived the duty to control traffic on the public roads. See Rice v. Connolly, [1966] Q.B. 414, at p. 419; Johnson v. Phillips, [1975] All E.R. 682, at p. 685; Halsbury's Laws of England, 3rd ed., vol. 30, para. 206, p. 129." The headnote of the Dedman case describes the police activities that the court considered: "Appellant voluntarily complied with police officer's request to stop his vehicle. There was nothing improper about his driving or the condition of his car. The stop was ordered as part of spot check program, known as R.I.D.E., whose principal aim is to detect, deter and reduce impaired driving. The police go to location where they believe there has been high incidence of impaired driving and, on random basis, request motorists to pull over and stop. They then ask for valid driver's licence and proof of insurance to initiate conversation with the goal of detecting the otherwise undetectable drinking driver." (Emphasis added.) In Wilson the court stated: "With regard to the second point, the appellant's arguments that the stopping was unconstitutional can be dismissed on two bases. First, if the stopping of the appellant's vehicle is considered to be random stop then for the reasons given in Ladouceur, supra, would conclude that although the stop constituted an arbitrary detention, it was justified under s. of the Charter. Second, in this case the stopping of the appellant was not random, but was based on the fact that the appellant was driving away from hotel shortly after the closing time for the bar and that the vehicle and its occupants were unknown to the police officer. While these facts might not form grounds for stopping vehicle in downtown Edmonton or Toronto, they merit consideration in the setting of rural community. in case such as this, where the police offer grounds for stopping motorist that are reasonable and can be clearly expressed (the articulable cause referred to in the American authorities), the stop should not be regarded as random. As result, although the appellant was detained, the detention was not arbitrary in this case and the stop did not violate s. of the Charter." In Ladouceur Cory J., writing for the majority, went considerably beyond the cautious approach expressed in Wilson. He stated the conclusion of the court: "While the routine check is an arbitrary detention in violation of s. of the Charter, the infringement is one that is reasonable and demonstrably justified in free and democratic society. As result, s. 189a(1) of the Highway Traffic Act is valid and constitutional legislative enactment. There is no need to read the section down as did Tarnopolsky, J.A. in the Court of Appeal or to qualify it in any way. Having come to this result, it is not necessary to deal with the arguments raised under s. 24(2). The answers to the constitutional questions posed are: 1. Is section 189a(1) of the Highway Traffic Act, R.S.O. 1980, c. 198, as amended by s. of the Highway Traffic Amendment Act, 1981 (No. 3), S.O. 1981, c. 72, inconsistent with ss. 7, and of the Charter of Rights and Freedoms to the extent that it authorizes the random stop of motor vehicle and its driver by police officer acting without any reasonable grounds or other articulable cause to believe that an offence has been committed, when such stop is not part of an organized procedure such as the R.I.D.E. programme? Answer: Section 189a(1) of the Highway Traffic Act, R.S.O. 190, c. 198 as amended by s. of the Highway Traffic Amendment Act, 1981 (No. 3), S.O. 1981, c. 72, is not inconsistent with ss. or of the Canadian Charter of Rights and Freedoms but is inconsistent with s. 9. 2. If the answer to question lies in the affirmative, can s. 189a(1) of the Highway Traffic Act be justified pursuant to s. of the Charter? Answer: Section 189a(1) of the Highway Traffic Act can be justified pursuant to s. of the Charter." Hufsky v. R. was considered in Cory J.'s judgment in Ladouceur: "Hufsky had been randomly stopped by police officer in Metro Toronto. The officer asked to see the appellant's driver's licence and proof of insurance and verified their validity. While speaking to Hufsky, the officer detected alcohol on his breath and noticed that his speech was slightly slurred. The officer asked Hufsky to accompany him to his police car to conduct roadside breath test. But when the officer made the breath demand, Hufsky refused to comply. The officer then told Hufsky that he would be charged with failing to provide breath sample and informed him of his right to retain and instruct counsel without delay. Le Dain J., writing for unanimous Court, held that the random stops conducted under the spot check program and authorized by s. 189a(1) of the Highway Traffic Act did not violate the Charter. He concluded that although the random stop constituted arbitrary detention in violation of s. of the Charter it was justified under s. 1. He also held that the random stop did not constitute an unreasonable search and seizure in violation of s. of the Charter. in holding that the random stops, though violating s. 9, were justified under s. 1, he stated at pp. 636‑37: In view of the importance of highway safety and the role to be played in relation to it by random stop authority for the purpose of increasing both the detection and the perceived risk of detection of motor vehicle offences, many of which cannot be detected by mere observation of driving, am of the opinion that the limit imposed by s. 189a(1) of the Highway Traffic Act on the right not to be arbitrarily detained guaranteed by s. of the Charter is reasonable one that is demonstrably justified in free and democratic society. The nature and degree of the intrusion of random stop for the purposes of the spot check procedure in the present case, remembering that the driving of motor vehicle is licensed activity subject to regulation and control in the interests of safety, is proportionate to the purpose to be served. There are few distinctions between the random stop under consideration in the case at bar and the random stop dealt with by this Court in Hufsky. In both cases, the stop was conducted in order to check licences, insurance, mechanical fitness and, although never explicitly stated at the appellant's trial, the sobriety of the driver. in both cases, the police actions were authorized primarily by s. 189a(1) of the Highway Traffic Act which granted them absolute discretion to stop motorists if in the lawful execution of their duties. Finally, the respondent the Attorney General of Ontario relied on exactly the same extrinsic evidentiary material in each case to justify the random stops. It might be sought to distinguish the Hufsky decision on the ground that it applied to an organized program of roadside spot checks, whereas this case concerns the constitutionality of completely random stops conducted by police as part of routine check which was not part of any organized program. It might well be that since these stops lack any organized structure, they should be treated as constitutionally more suspect than stops conducted under an organized program. Nonetheless, so long as the police officer making the stop is acting lawfully within the scope of statute, the random stops can, in my view, be justifiably conducted in accordance with the Charter." Cory J. referred to Hufsky again in considering whether routine check random stop violates ss. 7, or of the Charter? "In Hufsky, supra, Le Dain J. held that random stop of motorist for the purposes of the spot check procedure violated s. of the Charter. He found that motorist stopped at check point was detained as that term was defined in R. v. Therens, 1985 CanLII 29 (SCC), [1985] S.C.R. 613, and R. v. Thomsen, 1988 CanLII 73 (SCC), [1988] S.C.R. 640. He stated at p. 632: 'By the random stop for the purposes of the spot check procedure the police officer assumed control over the movement of the appellant by demand or direction that might have significant legal consequence, and there was penal liability for refusal to comply with the demand or direction.' Le Dain J. also determined that the detention was arbitrary, since there were no criteria for the drivers to be stopped and subjected to the spot check procedure. He stated at p. 633: 'The selection was in the absolute discretion of the police officer. discretion is arbitrary if there are no criteria, express or implied, which govern its exercise.' The conclusions reached in Hufsky, supra, determine the arbitrary detention issue raised in this case. Although the police officers differed as to whether the appellant would have been arrested if he had attempted to flee, there can be no question that he was detained. The police officers had assumed control over the movement of the appellant by demand or direction. In addition, while the detention involved only traffic offences rather than violations of the Criminal Code, the maximum penalties which provide for $2,000 fine or six months' imprisonment, demonstrate that the legal consequences of the detention were significant. The detention was arbitrary, since the decision as to whether the stop should be made lay in the absolute discretion of the police officers. There can thus be no doubt that the routine check random stop constituted an arbitrary detention in violation of s. of the Charter. The appellant's challenge under s. is also governed by the decision in Hufsky. There Le Dain J. stated at p. 638: In my opinion the demand by the police officer, pursuant to the above legislative provisions, that the appellant surrender his driver's licence and insurance card for inspection did not constitute search within the meaning of s. because it did not constitute an intrusion on reasonable expectation of privacy. Cf. Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] S.C.R. 145. There is no such intrusion where person is required to produce licence or permit or other documentary evidence of status or compliance with some legal requirement that is lawful condition of the exercise of right or privilege. Section might be brought into play in circumstances where the police, in the process of random stop, found in the car marijuana or an item of stolen property. But the police in this case did no more than request the appellant's licence and insurance papers. The appellant quickly admitted that his licence was under suspension and as result he was unable to produce these documents. It follows that it cannot be argued that "seizure" within the meaning of s. occurred. The action of the police in this case cannot be regarded as violation of s. of the Charter. Since it has been determined that routine check random stops violate s. of the Charter, it is unnecessary to decide whether these random stops infringe s. 7." The conclusion the Supreme Court of Canada has consistently reached in the cases referred to above is that police are authorized, at least under the Alberta and Ontario legislation, to make random stops for the purposes of inspecting documents and with view to detecting drinking drivers. These may be made within or without the context of publicized anti drunken driving campaigns, such as the Ontario R.I.D.E. program. Random stops are infringements of the s. 9 Charter right to be free of arbitrary detention, but they are saved by s. 1 of the Charter. If police do not go beyond what is reasonably justified for purposes of highway safety, s. of the Charter is not infringed. am satisfied that the Alberta and Ontario legislation is similar in material respects to that of Nova Scotia. Therefore the conclusions of the Supreme Court of Canada in the relevant cases have equal application in this province. Anatomy of the Incident Perhaps enough underlying principles have been stated to permit an examination of the anatomy of what the Crown described, with some accuracy, as "routine" breathalyzer incident. As in Wilson, Constable Byrne was justified in engaging her emergency lights and stopping Mr. MacLennan's vehicle both as random stop and stop made for an articulable cause. The observation of the passenger putting on his seat belt was sufficient to give them reasonable cause to believe an offence had been committed under s. 175(4) of the Motor Vehicle Act, which requires every passenger to wear seat belt while motor vehicle is being operated on highway. There was nothing in the manner in which Mr. MacLennan himself was driving his vehicle to suggest to the police officers that anything was amiss. The police officers were not engaged in publicized campaign to combat drunken driving such as the Ontario R.I.D.E. program. They were exercising common law duty to control traffic on highway coupled with statutory authority to stop vehicles. They had the authority to stop Mr. MacLennan's vehicle. To the extent that the stop was random and arbitrary, it was an infringement of s. of the Charter that was justified under s. 1. From the moment the vehicle stopped the driver was detained, but he was not entitled to the right to counsel pursuant to s. 10(b) of the Charter. The necessity for this is explained in Bernshaw. This state of affairs, which must be kept as brief as possible, continues until the driver is either permitted to go on his way or is subjected to breathalyzer demand, usually but not necessarily after failing an ALERT test. This period breaks into two divisions. The second, which begins the moment the police officer has formed reasonable suspicion that there is alcohol in the driver's body, was the focus of Bernshaw. Then the ALERT demand must be made "forthwith" within flexible limits. This presupposes an earlier time division beginning with the detention while the reasonable suspicion is taking shape in the officer's mind. During this incubation period the officer is able to keep the driver under observation while inspecting his or her driver's license, certificate of registration and proof of insurance. if the inspection and observation are related solely to the officer's duties to control traffic, which includes the detection of drinking drivers, no breach of s. of the Charter occurs. Mellinthin v. 1992 CanLII 50 (SCC), [1992] S.C.R. 615 illustrates how police powers at roadside may be exceeded. vehicle driven by Mellinthin was stopped and police shone flashlight into the interior, noting an open gym bag on the front seat. He was asked what it contained and replied that it was food. When police searched it, vials of cannabis resin were discovered. Cory J., writing for the majority, stated: “There can be no quarrel with the visual inspection of the car by police officers. At night the inspection can only be carried out with the aid of flashlight and it is necessarily incidental to check stop program carried out after dark. The inspection is essential for the protection of those on duty in the check stops. There have been more than enough incidents of violence to police officers when vehicles have been stopped. Nor can place any particular significance upon the fact stressed by the appellant that the police only made use of flashlight after the request had been made of the appellant to produce the necessary papers and not when the constable first approached the car. Although the safety of the police might make it preferable to use the flashlight at the earliest opportunity, it certainly can be utilized at any time as necessary incident to the check stop routine. However, the subsequent questions pertaining to the gym bag were improper. At the moment the questions were asked, the officer had not even the slightest suspicion that drugs or alcohol were in the vehicle or in the possession of the appellant. The appellant's words, actions and manner of driving did not demonstrate any symptoms of impairment. Check stop programs result in the arbitrary detention of motorists. The programs are justified as means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into means of conducting either an unfounded general inquisition or an unreasonable search." In the present case Constable Byrne requested that Mr. MacLennan go to the police cruiser. This was reasonable incident of her duty to check his papers and observe him for signs of impairment. It may be noted that police routinely check the validity of licenses by radio call from their vehicles, and it was appropriate for him to be present. He had passenger with him, and the Crown suggested it is police practice intended for their own protection to separate the driver with whom they have their commerce from others in the vehicle. This would seem to be reasonable safeguard. Cory J.'s remarks as to use of the flashlight are apposite. The request was perfectly proper one and while Mr. MacLennan was not obliged to comply with it, the fact that he did so can hardly be considered breach of his rights. It is true that Constable Byrne wished to observe Mr. MacLennan away from his vehicle so she could tell whether the odour of alcohol was coming from him or the spilled beer in the car. She was entitled to ask him to come to the police vehicle, and there was nothing improper about her using that as device to further her legitimate objectives. The jurisprudence cited above makes it clear the Supreme Court of Canada approves of police making use of the opportunities provided by their right to inspect documents to make the observations necessary to detect drinking drivers. No infringement of s. occurred. Observing Mr. MacLennan in the course of proper police procedures is different matter from conscripting him to perform sobriety tests for the purpose of incriminating himself which was found objectionable in Baroni. There was no statutory or common law authority validating the sobriety tests. There is strong authority for the observation of indicia of impairment emanating from the respondent in the course of routine procedures during roadside stop. The indicia of Mr. MacLennan's impairment observed by Constable Byrne were passive emanations flowing from the fact he had had so much to drink that it showed it in his odour, his speech and his movements. In these circumstances there was no improper intervention by the officer in conscripting him against himself or which violated his reasonable expectations of privacy. He knew he could be asked to produce his documents if he drove his vehicle on highway, and that in doing so he might be requested to attend at police cruiser. Knowing that, he consumed the alcohol voluntarily and then chose to drive on highway. Constables Byrne and Merrell protected Mr. MacLellan, his passenger and the public by alert police work. In this case Constable Byrne did not give Mr. MacLennan an ALERT demand. She gave him the breathalyzer demand instead. There was nothing inappropriate about this. As noted above, there is an incubation period while driver is observed during the inspection of documents when police officer may form the reasonable suspicion prerequisite to the ALERT demand. There are two other possibilities. The usual one is that no suspicion of drinking may arise and the driver is free to leave. The other possibility is that during the incubation period the indicia of impairment strike the officer so forcefully that there is no need for the screening test; the officer forms reasonable and probable belief that the driver is impaired and no further evidence is required. In that event either the driver is given the breathalyzer demand or arrested for impaired driving. While the reasonable and probable grounds necessary to support the breathalyzer demand or an arrest are of much higher standard than the reasonable suspicion needed for the ALERT demand, this is only matter of degree. While the framework was created to permit screening tests with the ALERT machine as discussed in Bernshaw, an ALERT demand is not necessary to justify the preceding period of detention without the right to counsel. In most circumstances failing result on the ALERT is all the evidence needed to support breathalyzer demand, but the ALERT result is not necessary part of the evidence if other grounds exist. In the present case Judge Crowell in his well considered judgment found himself to be "satisfied that the officer did in fact have reasonable and probable grounds for making the demand that she did." The evidence was sufficient to meet the test in R. v. Yebes 1987 CanLII 17 (SCC), [1987] S.C.R. 168. If he had not been able to make that finding he indicated that he would consider applying Rilling v. R. 1975 CanLII 159 (SCC), [1976] S.C.R. 183, which was approved by Cory J. in Bernshaw. Absence of reasonable and probable grounds is defence to refusing breathalyzer demand, but when the test has been taken, proof of the existence of the grounds is not necessary element of the Crown's case if there has been no Charter infringement. am satisfied there was no Charter infringement in the present case. The finding as to reasonable grounds disposes of the respondent's first ground of contention. The second, alleging an infringement of the s. 10(b) right to counsel, relates not to the initial incident at roadside but to the sufficiency of the right to counsel given him following the breathalyzer demand in light of the recent decision of the Supreme Court of Canada in Bartle v. R. (Unreported‑‑1994 S.C.C.). While Bartle may well cause police to reexamine the form of information provided to accused persons under s. 10(b), it does not shift the burden from the accused to assert Charter infringement. This issue was not raised at the trial and do not find it is properly before this court on the appeal. Summary Police in Nova Scotia are justified in stopping vehicles at random, independently of any articulable cause or publicized enforcement program, for the purpose of controlling traffic on the highway by inspecting licensing, registration and insurance documents, the mechanical condition of vehicles, and to detect impaired drivers. Random stops are arbitrary detentions which infringe s. 9 of the Charter but which are saved under s. 1. The driver is not entitled to the right to counsel guaranteed by s. 10(b) of the Charter during the period, which must be as brief as possible, between detention which begins when the vehicle is stopped and the conclusion of the inspection of documents, when the driver must be released if no demand has been given. If police officer forms reasonable suspicion under s. 254(2) the ALERT demand must be given forthwith, which is to be interpreted flexibly if there is reason to believe the ALERT test will not be accurate. Observations of drivers made in the course of inspecting documents and reasonably incidental, or safety related, activities such as examining the interior of vehicles by flashlight or requesting drivers to attend at the police cruiser are relevant to the formation of reasonable suspicion of the presence of alcohol in the driver's body sufficient to justify an ALERT demand under s. 254(2) of the Criminal Code. They may also result in the formation of reasonable belief sufficient to justify breathalyzer demand or arrest for impaired driving without the necessity of an ALERT test. The suspension of the right to counsel and the guarantee against arbitrary detention under s. of the Charter do not justify the taking of statements or searches unrelated to the control of traffic; i.e. the inspection of documents or mechanical condition and detection of drinking drivers. Conclusion In my view the summary conviction appeal court was in error in determining there had been an arbitrary detention in breach of s. of the Charter which was not saved by s. 1. Accordingly I would allow the appeal on this ground and restore the conviction entered by Judge Crowell. There is therefore no need to consider s. 24(2) of the Charter. would dismiss the notices of contention. Freeman, J.A. Concurred in: Chipman, J.A. Roscoe, J.A. CANADA PROVINCE OF NOVA SCOTIA Case 404440 404441 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus JOHN WAYNE MACLENNAN HEARD BEFORE: His Honour Judge K. L. CROWELL PLACE HEARD: KENTVILLE, Nova Scotia DATE HEARD: February 3rd, 1994 CHARGE: on or about the 21st day of June 1993 at or near New Minas, Kings County, Nova Scotia, 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 Section 253(b) of the Criminal Code, AND FURTHER SECTION 253(A) of the Criminal Code. COUNSEL: Darrell Carmichael, For the Prosecution. Curtis Palmer, For the Defense. C.A. No. 108237 NOVA SCOTIA COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN and JOHN WAYNE MacLENNAN Respondent REASONS FOR JUDGMENT BY: Freeman, J.A.

The respondent was convicted at trial with illegal blood alcohol level while operating a motor vehicle. The police had stopped the respondent when they observed the passenger putting on a seat belt. When the respondent went to the police cruiser, the police observed signs of impairment. The summary conviction appeal court held the stop was random and constituted an arbitrary detention infringing the respondent's s.9 Charter rights. The Crown appealed. Allowing the appeal and restoring the conviction. Random stops are arbitrary detentions infringing the Charters. 9 but are saved by s.1. They are authorized in Nova Scotia under Motor Vehicle Act provisions. In the course of checking licences, registration, insurance policy and mechanical condition police are justified in making observations to detect drinking drivers; the right to counsel under s. 10(b) is suspended during this period.

7_1995canlii4340.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 115 Date: 20080908 Between: Docket: 1653 The Minister of Social Services (Respondent) Prospective Appellant and R.S. and N.W. (Appellants) Prospective Respondents Counsel: Charita N. Ohashi for the Prospective Appellant Marilyn Adsit for the Prospective Respondent Application: From: FSM 231 of 2007, J.C. of Battleford Heard: September 8, 2008 Disposition: Leave Denied (orally) Written Reasons: September 9, 2008 By: The Honourable Madam Justice Smith SMITH J.A. [1] The Minister of Social Services applied for leave to appeal an order of Gabrielson J., sitting on appeal from an order of Meekma P.C.J., in relation to the child K.W. dismissed the application from the bench following oral argument for the following reasons. [2] The child K.W. had been apprehended at birth due to the drug abuse of the mother. When the child was approximately 18 months old, the minister sought permanent order pursuant to s. 37(2) of the Act (The Child and Family Services Act, S.S. 1989-90, c. C-7.2). This order was granted by Meekma P.C.J. The child’s father, R.S., then appealed the order and sought to adduce fresh evidence in relation to his fitness to parent the child. Wright J., in chambers, ordered psychological report on R.S. and home study. The matter came back before Gabrielson J. With the agreement of the parties, Gabrielson J. received the psychological report on R.S. into evidence. Neither party sought to cross-examine the writer of the report. The report was very favourable to R.S. and recommended as follows: 1. [KW] be returned to his father’s care. It may be best to transition him gently with the foster mother taking KW for or day-long visits to his new home. On each visit some of his toys and clothing can be transferred and his room can be personalized for him. 2. [The father] be encouraged to maintain the course he is on. It would be good if he could find contact he trusts and respects who can track the progress of the family by meeting with them periodically for the next years. He should understand this as supportive measure as opposed to threat to his family. 3. [The father and mother] be encouraged to seek some counseling that might help them resolve negative emotional residue that might trigger relapses in substance abuse and other irresponsible behaviors tat may have been acquired. This might also help [the father] resolve his issues with authority figures and free him to take healthy role off the Reserve as well. 4. [The father] accompany [the mother] to 28-day drug program with [KW] to solidify their relationship and to ensure that [the mother’s] recovery will be maintained. [3] Gabrielson J. made an order pursuant to s. 37(1)(a) that K.W. be returned to the care of his father, subject to these conditions: 1. That there would be a transition period for a period of a maximum of six months, to comprise parental visits at the ministry office followed by day visits and then overnight visits in the parental home prior to returning K.W. to the care of R.S. 2. That R.S.’s custody of K.W. be subject to supervisory order for period of one year after K.W. is returned to his care. This period is subject to a number of conditions reflecting the recommendations in the psychological report and is not material to this application. [4] The minister seeks to appeal this order on the following grounds: 1. That the judge on appeal erred in ordering on concurrent basis that K.W. be returned to his father and also that the minister retain custody of K.W. on temporary basis, contrary to subsections 37(1) and 38(9) of The Child and Family Services Act. 2. In the alternative, the judge on appeal erred in rendering an order for supervision that exceeds one year contrary to subsection 37(6) of The Child and Family Services Act. 3. The judge on appeal erred in failing to ensure that all proceedings were recorded as required by s. 27 of The Child and Family Services Act. [5] Section 64 of the Act provides that any party may appeal the order of Queen’s Bench judge sitting on appeal on question of law with leave of judge of the Court of Appeal. [6] Cameron J.A. set out the test for an application for leave to appeal in Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII); 227 Sask. R. 121: The power to grant leave has been taken to be discretionary power exercisable upon set of criteria which, on balance, must be shown by the applicant to weigh decisively in favour of leave being granted: Steier v. University Hospital, 1988 CanLII 215 (SK CA), [1988] W.W.R. 303 (Sask. C.A., per Tallis J.A. in chambers). The governing criteria may be reduced to two-each of which features subset of considerations-provided it be understood that they constitute conventional considerations rather than fixed rules, that they are case sensitive, and that their point by point reduction is not exhaustive. Generally, leave is granted or withheld on considerations of merit and importance, as follows: First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? Is it prima facie frivolous or vexations? Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? Is it apt to add unduly or disproportionately to the cost of the proceedings? Second: Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? does it raise new or controversial or unusual issue of practice? does it raise new or uncertain or unsettled point of law? does it transcend the particular in its implications? [7] It is my respectful view that there is no merit to either of the last two proposed grounds of appeal. The order of Gabrielson J. clearly provides for supervision period of only one year after R.S. resumes custody of K.W. Section 27 of the Act applies to protection hearings. Gabrielson J. was sitting on appeal. While he did receive new evidence, as he is expressly authorized to do by s. 63 (4)(a), this did not take the form of viva voce evidence, but only of the psychological report on R.S. which was in written form and was filed by the agreement of the parties and was not subject to cross-examination. [8] With regard to the first ground, counsel for the proposed appellant makes two arguments. First, and most generally, it is argued that, while the judge on appeal had jurisdiction to make an order subject to conditions (see sections 63(4)(c) and 37(5)(a)), this power is not “broad enough” to permit the judge to make an order that both returns the child to the custody of parent, pursuant to s. 37(1)(a), and has the child remain in the custody of the minister for temporary period, pursuant to s. 37(1)(b). [9] Second, counsel argues that, practically speaking, the order is fraught with ambiguity, for it is unclear whether, during the transition period, the minister retains status as parent until the transition is complete and the child is returned to his father’s care, and, if so, who determines when the transition is complete? [10] Taking the second ground first, it seems entirely clear to me, from the very meaning of the word “transition” and the wording of the order, that the minister is to retain status as parent with the attendant decision-making authority until the transition is complete and the child is returned to the custody of the father. In any case, if there is any lingering ambiguity, the matter can be referred back to Gabrielson J. for clarification. [11] In relation to the first ground, note that s. 37(5)(a) provides as follows: 37(5) In making an order pursuant to subsection (1) or (3), the court may: (a) impose any terms and conditions that the court considers appropriate; and [12] This provision is worded very broadly. The transition period provided for in the order is one that was recommended by the psychological report and is manifestly in the best interest of the child, who has been in the care of his foster mother since birth. It is in my view highly doubtful that the Act should be interpreted, as counsel for the proposed appellant argues, to preclude an order returning the child to its parent’s custody with period of transition. [13] In any case, even if there is a scintilla of merit to the argument, I would not grant leave on the basis that to grant leave to appeal on this extremely technical ground would cause delay that is manifestly not in the best interest of the child in the circumstances of this case. Nor am I satisfied that the issue is of sufficient significance either to the parties or the wider public to warrant an appeal. [14] The application is dismissed.

The Minister of Social Services applied for leave to appeal an order of Gabrielson J., sitting on appeal from an order of Meekma P.C.J. in relation to the child K.W. Gabrielson J. made an order returning K.W. to its parent's custody with a period of transition after receiving a psychological report on R.S. The report was very favourable to R.S. The parties agreed to Gabrielson J. receiving the report and neither party sought to cross-examine the writer of the report. HELD: Leave denied. Even if there was a scintilla of merit to the argument, the Court would not grant leave to appeal on the basis that to grant leave to appeal on an extremely technical ground would cause delay that is manifestly not in the best interest of the child in the circumstances of this case. The issue is not of sufficient significance either to the parties or to the wider public to warrant an appeal.

d_2008skca115.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Pricewaterhouse Coopers Inc. v. County Realty Ltd., 2006 NSSC 132 Date: 20060421 Docket: S.SN. 256803 Registry: Sydney Between: Pricewaterhouse Coopers Inc., Trustee in Bankruptcy of Alternative Sports Limited v. County Realty Limited, body corporate, incorporated under the laws of the Province of Nova Scotia Defendant Judge: The Honourable Justice Walter R.E. Goodfellow Heard: February 21 and March 31, 2006, in Sydney, Nova Scotia Counsel: Gail Rudderham Chernin, Q.C., for the plaintiff Gary J. Corsano and Robert F. Risk, for the defendant By the Court: [1] Pricewaterhouse Coopers Inc. (hereinafter “Pricewaterhouse”) received voluntary assignment for bankruptcy by the directors of Alternative Sports Limited on September 9, 2005. This assignment was approved by the Superintendent of Bankruptcy on September 12, 2005, appointing Pricewaterhouse and, specifically, Rita Anderson as Trustee in bankruptcy. [2] Pricewaterhouse retained Allan Henderson as a contractual agent to value and liquidate the assets in favour of the creditors of Alternative Sports Limited pursuant to the Bankruptcy and Insolvency Act and when he attended at the premises at 216 Charlotte Street, Sydney, Nova Scotia, he found that the inventory was being loaded into a van and he was unable to gain possession of the assets. Mr. Henderson called Rita Anderson who attended on September 12, 2005. [3] In the affidavit of Irving Warner, President of County Realty Limited, Warner acknowledges in paragraph 10 that he was present at the premises on September 12, 2005 when Rita Anderson attended: “she spoke with my employee, Archie Snow, in my presence, and advised him that Alternative Sports was bankrupt and that the inventory was seized.” [4] Mr. Warner had instructed his staff to remove the inventory to another location owned by County Realty Limited, namely, 308 Charlotte Street, Sydney, Nova Scotia, and his employees Archie Snow, Steve Moseychuck and Mark MacDonald began to carry out his instructions before the trustee arrived [5] County Realty Limited refused to turn over the inventory and an application was made for an interim injunction. A consent order dated the 22nd of February, 2006 was granted, directing that Pricewaterhouse would take possession of the assets which have given rise to the action for the purposes of completing an inventory and liquidating the assets in accordance with the normal duties and powers of the Trustee pursuant to the Bankruptcy and Insolvency Act. The order provided the Trustee’s entitlement to receive reasonable fees, expenses and disbursements directly associated with the removal and relocation of the assets. The taking of the inventory and its liquidation, with detailed inventory and results of the liquidation, when completed, to be filed with the court. This order was continued. This application for summary judgment which was first heard on February 21, 2006 was continued on March 31, 2006. [6] Civil Procedure Rule 13.01 is as follows: Application for summary judgment 13.01 After the close of pleadings, any party may apply to the court for judgment on the ground that: (a) there is no arguable issue to be tried with respect to the claim or any part thereof; (b) there is no arguable issue to be tried with respect to the defence or any part thereof; or (c) the only arguable issue to be tried is as to the amount of any damages claimed. [Amend. 31/05/02] [7] Section 16(3) of the Bankruptcy and Insolvency Act, R.S. 1985, c. B-3, states: The trustee shall, as soon as possible, take possession of the deeds, books, records and documents and all property of the bankrupt and make an inventory, and for the purpose of making an inventory the trustee is entitled to enter, subject to subsection (3.1), on any premises on which the deeds, books, records, documents or property of the bankrupt may be, notwithstanding that they may be in the possession of sheriff, secured creditor or other claimant thereto. [8] Section 20(3) of the Tenancies and Distress for Rent Act, R.S.N.S., 1989, c. 464 states: Where voluntary assignment of his property for the benefit of his creditors, or an authorized assignment under the Bankruptcy Act (Canada) is made by tenant, or where under the Bankruptcy Act (Canada) petition is presented to the court praying tenant by adjudged bankrupt and that receiving order be made against him, there shall be no right of the landlord to distrain or complete his distress for rent except for such rent as has accrued due during the three months immediately preceding such assignment, authorized assignment or petition, provided that where petition for receiving order or for the winding up of an incorporated company is dismissed or withdrawn or for any other reason is not granted the rights of the landlord affected by this subsection shall be deemed not to have been so affected. [9] Section 20 of the Tenancies and Distress for Rent Act works in conjunction with section 73 of the Bankruptcy and Insolvency Act in that it is clear that the landlord loses its distress rights on the bankruptcy of the tenant. The landlord has no right to distrain or to complete his distrain for rent as his only right is to claim as preferred creditor for arrears for rent for period of three months immediately preceding the bankruptcy and following the bankruptcy if entitled thereto under the lease and pursuant to section 136 of the Bankruptcy and Insolvency Act regarding the scheme of distribution. TEST FOR SUMMARY JUDGMENT: [10] The test for summary judgment in Nova Scotia is well established. In Canadian Imperial Bank of Commerce v. Tench (1990), 1990 CanLII 2451 (NS CA), 97 N.S.R. (2d) 325 (C.A.), Macdonald, J.A. stated at paragraph 9: The law is clear that plaintiff is entitled to obtain summary judgment if he can prove his claim clearly and if the defendant is unable to set up bona fide defence or raise an arguable issue to be tried see Bank of Nova Scotia v. Dombrowski (1977), 23 N.S.R. (2d) 532; 32 A.P.R. 532... Under the circumstances of this case, if the allegations contained in the statement of defence are correct, they would afford an answer to the bank’s claim. [11] In D.E. Son Fisheries Ltd. v. Goreham (2003), 2003 NSCA 93 (CanLII), 217 N.S.R. (2d) 199, (N.S.C.A.), Cromwell, J.A. stated at para. 2: Summary judgment may be granted to plaintiff if the plaintiff can prove the claim clearly and the defendant is unable to set up bona fide defence or raise an issue against the claim which ought to be tried. Bank of Nova Scotia and Simpson (Robert) Eastern v. Dombrowski (1978), 23 N.S.R. (2d) 523, 31 A.P.R. 532 (C.A.) At 537; Oceanus Marine Inc. v. Saunders (1996), 1996 CanLII 5309 (NS CA), 153 N.S.R. (2d) 267, 450 A.P.R. 267 (C.A.) at para 15. [12] There is no meaningful difference between an “arguable” issue and “genuine” or “bona fide” issue: see Roscoe, J.A. in United Gulf Developments Ltd. V. Iskandar, 2004 NSCA 35, (N.S.C.A.) (CanLII). [13] The position taken by County Realty Limited in its pleadings and evidence is first, that it has set out the pleading requirements taken as correct establish lease between County Realty Limited and Trevor Muller. In other words, that landlord tenant relationship existed between County Realty Limited and Trevor Muller. [14] County Realty Limited also takes exception to the conduct of Pricewaterhouse and in particular, Rita Henderson, as trustee in bankruptcy of Alternative Sports Limited. The affidavit evidence and documentation provided by the trustee in bankruptcy to County Realty Limited establishes prima facie valid appointment as trustee leaving the sole issue before me as to whether or not County Realty Limited has disclosed sufficient facts to place an arguable issue before the court. Gruchy, J. stated well, the defendant’s position in Prenor Trust Company v. Gupta (S.B.) Investments Limited (1991), 1991 CanLII 4509 (NS SC), 105 N.S.R. (2d) 251 (T.D.) quoting the often cited case of Featherstonhaugh v. Featherstonhaugh, 1939 CanLII 311 (ON CA), [1939] D.L.R. 262 (Ont. C.A.) Robertson, C.J. O., stated at paragraph 23: The Defendant needs to show the nature of his Defence and to disclose such facts as may be deemed sufficient to enable him to defend, and it is upon his success or failure in doing so that the fate of the motion must turn. In sense, the usual role is reversed for this special purpose, and the burden of proof, such as it is, lies upon the Defendant and not upon the Plaintiff. Gruchy, J. goes on to state in paragraph 25 as follows: It is clear from reading of Rule 13 and of the cases above cited, an onus rests upon the Defendants to bring forth sufficient facts which would conclude that bona fide Defence or issue exists which ought to be tried. [15] turn now to review that which is advanced by County Realty Limited. The affidavit of Mr. Warner alleges his approval of a rental of the premises to Trevor Muller personally and goes on to acknowledge that no lease agreement was ever signed. Attached to the affidavit of his Agent, Archie Snow, is the legal account from the law firm of LaFosse MacLeod dated October 27, 2005 and number of the entries in that account are acknowledged to be relevant to this action, as follows: Aug-22-05 Office conference with Trevor Muller re: offer to lease. Aug-23-05 preparation of draft lease. Telephone conference with Archie Snow. Extensive revisions to draft lease as per Archie Snow’s instructions. Preparation of personal guarantee for Trevor Muller and Catherine Muller. Aug-24-05 letter to Trevor Muller highlighting areas of the enclosed lease. Telephone conference with Trevor Muller. Aug-25-05 telephone call to Trevor Muller to advise his documents re still here. Voice-mail to Archie Snow providing update. Aug-26-05 telephone conference with Trevor Muller. Clause by clause review of changes he wants to lease. Telephone call to Archie Snow to discuss Mr. Muller’s changes. Telephone call to Trevor Muller advising that Archie Snow would contact him directly. Aug-31-05 telephone call from Archie Snow advising that Mr. Muller has retained Mr. Beaton and lease must be signed tomorrow. Fax to Wayne Beaton, Q.C. Sep-01-05 telephone call to Archie Snow. Advised him have not heard back from Wayne Beaton on Trevor Muller. Sept-06-05 telephone call from Archie Snow [16] The legal bill goes on to recite September 12th, telephone conference County’s Solicitor had with Rita Anderson and Mr. Warner personally. [17] County Realty Limited’s solicitors prepared draft lease and the parties are listed as follows: THIS INDENTURE made this day of August, A.D. 2005. BETWEEN: COUNTY REALTY LIMITED, company incorporated under the laws of Nova Scotia; (hereinafter referred to as the “Lessor”) and ALTERNATIVE SPORTS LIMITED, company incorporated under the laws of Nova Scotia; (hereinafter referred to as the “Lessee”) and TREVOR CLARENCE SCOTT MULLER (hereinafter referred to as the “First Guarantor”) and CATHERINE MULLER (hereinafter referred to as the “Second Guarantor”) WHEREAS the demised premises are to be used by the Lessee for commercial purposes, AND WHEREAS the First Guarantor and Second Guarantor each agree to guarantee the obligations of the Lessee under this Indenture, [18] The proposed term is set out as follows: II LEASE TERM TO HAVE AND HOLD the Demised Premises unto the Lessee for the term of one (1) year, commencing on the 1st day of September, A.D. 2005, and thenceforth fully to be completed and ended on the 31st day of August, A.D. 2006, unless the Lease is sooner terminated or later extended as provided herein. [19] The evidence advanced by Archie Snow in Cross-examination of his affidavit includes the following: Page 8... Q. O.k., but the important thing is, it’s the very next day after meeting with Trevor Muller it’s one day later, the very next day and he refers to an August 22 office conference with Trevor Muller re offer to lease so, he has met with Trevor Muller on the 22nd for an offer to lease, the very next day, preparation of draft lease, talks with you, extensive revisions, preparation of guarantees. So, are you telling me that that didn’t have to do with that lease? A. Mr. MacNeil was never instructed to prepare lease forms. County Realty and A.K.W. Homes, we do have our copy of lease forms. We asked Mr. MacNeil to prepare an offer to lease form with Mr. Muller. Q. So, you didn’t ask John MacNeil to prepare personal guarantees to attach to lease? A. No, we had conversations of the personal guarantees after Mr. Muller, believe, declined to even enter into an agreement, of any which way, shape or form. Q. O.k., that came later? A. That came later, yes. Q. That came later. We’re now at the point where you have the offer to lease and you’ve prepared draft? A. Yes, of the offer to lease form. Page 11 and 12... Q. So, what’s your version? A. Well, Mr. MacNeil called me and told me that Mr. Muller would not sign off on the lease, or something of the sort. My memory is pretty vague, as was on vacation and voice mails...as you can fully respect. Um, he...it seems that John MacNeil was telling me that Mr. Muller was orchestrating the lease, not us as County Realty. Q. So, why did you get billed for it? A. That’s good question and actually, that’s an ongoing issue in itself. Um, this whole bill is an issue with LaFosse MacLeod and Mr. Warner as going forward from today. Um, actually, the lease changes that he wanted to the lease...he wanted many revisions to un, the lease form, but not to our knowledge. Our knowledge was offer to lease, which basically states that he’s going to promise to take possession of property and pay deposit. From that point forward then we would, we would consider lease with Muller from that point forward, however, that never ever became, and where it came into the lease, the drafting of changes to lease, don’t know where that came from. didn’t give instructions for lease to be prepared that’s what I’m saying. Q. Explain to me what you think the difference is between an offer to lease and lease? What are the differences? A. Um, pre-determined possession date of the property with deposit. A. An offer to lease form one pager, if you will, stating that Mr. Muller will take possession of the property on certain date, for certain amount of money. A. Ah, once that is completed and we will enter into lease with Mr. Muller. That was never done and why would ask him to prepare lease without first having an offer to lease form is pretty much not what I’ve been taught. Q. So basically, your explanation is, the offer to lease is precedent to the lease? Q. But you can enter lease without an offer to lease? A. Not in our practice, we don’t. Q. Are you suggesting you didn’t know she was Trustee in Bankruptcy? A. Oh, knew she was Trustee in Bankruptcies. Page 20... Q. O.k. and when you name the parties...if you name company, do you prefer to have personal guarantee of the person? If there’s company that’s leasing from you, do you ask for personal guarantee? A. Ah, no, not necessarily. This particular case, was instructed by John MacNeil, through again, voice mail, that personal guarantee might be in order with Mr. Muller. Q. O.K. and that would be because if you have Mr. Muller personally named as lessee, then you can sue him personally if he defaults, but if you have his company names, you can’t sue him personally, unless he personally guarantees. So, personal guarantee gives you him as the lessee? A. That’s correct. Page 24... THE COURT: So, there’s no agreement at that stage as to the term? ARCHIE SNOW: Yes My Lord, that’s correct. [20] Mr. Snow gives evidence with respect to the invoices dealing with the change of locks at 216 Charlotte Street, and at this point simply interject from the affidavit of Mr. Warner the date Mr. Muller put inventory into the 216 Charlotte St. Was around the 5th of August and Warner states in para. 13. THAT with respect of Paragraph of the Affidavit of Allan Henderson, when Muller failed to pay his rent for the month of August 2005 had the locks changed on the Premises on August 18, 2005. Muller was given the new keys prior to September 2005. Muller continued to fail to pay his rent, and on September 1, 2005, had the locks for the Premises rekeyed. did not have the locks changed between September 8, 2005 and September 12, 2005. Attached hereto as Exhibit “A” are invoices from Bidart Locksmithing and Security with respect to the locks at the Premises. [21] Returning now to the affidavit of Mr. Snow: A. But, where the lease, draft copies of it came from, in terms of how they were drafter, can’t say that gave direction for that. It looks to me, from the bill, and again, can’t really say it’s true that Muller un, was instructing him to get his own legal counsel because he was kind of directing our legal counsel which is not really what was supposed to happen. Q. Hmm, hmm, which he did. Which he did and then he’s given instructions that... let’s even say that it’s an offer to lease. Let’s give you the offer to lease. Let’s say it was an offer to lease, as opposed to lease. Did you give instructions that it should be signed tomorrow? In other words, September 1st? guess. That’s what it looks like. musta give direction that we wanted it signed, sealed, delivered by September 1st, guess. Q. O.k., and then on September 1, John MacNeil places telephone call to you to advise you he has not heard back from Wayne Beaton on Trevor Muller. So, at this point, day by day, you’re concerned, you want something on paper, in writing and you’ve checking with lawyer to see has it been done yet? Q. This is the day the Trustee went down to the premises, September 12th to take possession of the inventory. Yes. Q. And at that point, you called the lawyer? A. Yes. Q. And the lawyer calls Rita Anderson? A. Yes. Q. And the lawyer calls Irving Warner. You put this into evidence. Would you care to tell us what that was about? A. Telephone call from me to John MacNeil; telephone conference with Rita Anderson don’t know what that entails, un, it didn’t include me. Ah, telephone conference with Irving Warner again, that did not include me. Um, and an office conference with LeeAnne MacLeod assume that would have been between John MacNeil and LeeAnne MacLeod? Q. Correct? A. Um, and left voice message for Irving Warner. Again, that did not include me, so the telephone call from me at the beginning of the day was to instruct John MacNeil at...probably Mrs. Anderson arrived on our scene. Q. O.k. Can you elaborate on that? A. Um, left that with Mr. Warner at that time. [22] It is also clear from Mr. Snow’s evidence that no deposit was paid by Muller and no agreement was ever reached with respect to the term of the proposed lease. Mr. Warner’s evidence on expansion of his affidavit made it clear that what was being sought was an offer to lease. He acknowledges no lease was entered into, he wasn’t sure what the term was to be either three or five years, that normally, no one would get in possession without signing lease. He was also upset after changing the locks on the 18th of August, there was apparently another set of locks given and he clearly instructed Archie Snow to get that set of keys back. Warner also denies some of the entries on the bill he received from the law firm of LaFosse MacLeod and says that it is an issue, but acknowledged that he paid it in timely fashion. [23] In determining whether or not the defendant has raised an arguable issue, have limited myself to the evidence advanced by County Realty Limited and have not made any determinations as to credibility in reaching the conclusion that the fundamentals of relationship of landlord tenant have not been advanced by County Realty. There are no facts advanced of agreement as to the term, none as to agreement as to when the lease would commence, no deposit, no consensus on the terms of any lease arrangement. The facts based on the evidence by County Realty Limited, Muller very clearly was only intended to be a guarantor and the lease prepared by County Realty Limited along with the evidence of Snow and the statement of legal fees strongly advances Muller’s position that he was only a guarantor and never intended to be a tenant. [24] The evidence advanced by County Realty is overwhelming that the basic facts required to show consensus on the fundamentals of lease do not exist. The mere statement by the defendant, that particular relationship exists does not constitute meeting the onus on the defendant to bring forth sufficient facts upon which the court could conclude that an arguable issue exists which ought to be tried. [25] Pricewaterhouse Coopers Inc. are entitled to summary judgement including a declaration with respect to the inventory and the existing order shall continue with damages to be determined and assessed in due course. [26] Counsel are entitled to be heard on costs and simply want to add at this stage that had found summary judgement was not established, would have denied County Realty Limited it’s costs because of the manner in which it conducted itself, although did not deal with credibility in making my determination on the issue of summary judgement. Credibility relating to how party conducts itself is relevant to the issue of costs. have no doubt that when Warner referred to having sold the inventory for $5,000. that whatever context he put it in, his intent clearly was to mislead the Trustee. Similarly, his explanation that his employees when they removed part of the inventory in the white van, drove out towards Gabarus, somewhere more than 15 miles from the place on Charlotte Street where they were supposed to be relocating the inventory. Mr. Warner suggests this was just lark and that, simply do not accept, it was clearly part and parcel of his attempt of County Realty Limited to mislead the Trustee and avoid the repossession.

When the trustee attended at the premises of the bankrupt, he found the bankrupt's inventory being loaded into a van by the landlord; after obtaining a consent order which allowed it to take possession of the assets for the purposes of compiling an inventory, the trustee brought an application for summary judgment against the landlord. Application for summary judgment granted. The evidence showed that only an offer to lease had been made, with no lease agreement ever having actually been signed, and that the individual with whom the landlord had dealt was only intended to be a guarantor and never a tenant.

c_2006nssc132.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN PAUL FLENGERIS AND DAVID BURKE CORAM: The Honourable Chief Justice Bayda The Honourable Madam Justice Gerwing The Honourable Madam Justice Jackson COUNSEL: D. Rayner for the Crown B. Banilevic for the appellant, Paul Flengeris David Burke on his own behalf DISPOSITION: Appeal Heard: October 1994 Appeal Dismissed: 3 October 1994 (orally) Written Reasons: October 1994 Appeal Files: 6289 6290 Appeal From: Provincial Court Reasons by: The Honourable Chief Justice Bayda In concurrence: The Honourable Madam Justice Gerwing and The Honourable Madam Justice Jackson BAYDA C.J.S.: The ultimate question in this appeal is whether theevidence adduced by the Crown - the defence called noevidence - was insufficient to such a degree that the trialjudge\'s verdict of guilty ought to be found by this Courteither unreasonable or one that cannot be supported by theevidence and, on the basis of the Yebes v. The Queen(1987), 1987 CanLII 17 (SCC), 36 C.C.C. (3d) 417 (S.C.C.) and pursuant to s.686(1)(a)(i) of the Criminal Code, ought to be set aside. The appellants alleged two insufficiencies in the evidence: (i)"The absence of any expert evidence that the injuries sustained by Musam Musleh [the victim-complainant] resulted from any blows such as kicks or punches and as such were the result of an assault." In short, they contended that the Crown failed to prove that an offence of assault, or indeed an offence of any kind, had been committed. (ii)"The absence of any evidence that the Appellant[s] delivered any blows to [the victim]". In short, they contended that the Crown failed to discharge the burden of proving identity. As well, the appellants alleged an error of law by "convicting on circumstantial evidence, when other reasonable explanations existed". In our respectful view the appellants failed on all three of those submissions. As to the need for expert evidence to pinpoint thecause of the injuries suffered by the victim, the questionis readily resolved by examining the circumstancesimmediately preceding the infliction of the injuries, bythe description of the injuries given by the victim, (who,although he did not remember how the injuries wereinflicted, had a very good recollection of their nature) bylooking at the photographs of the victim taken thefollowing day, by the opinions of both the counterman atthe 7-Eleven store who saw the victim shortly after theinjuries were inflicted and called the police, and of theinvestigating officer who saw the victim shortly afterthat. The officer testified: It was very evident and plain to see that Mr. Musleh had been severely beaten about the face. The extent of his injuries were actually quite unbelievable. I've been an officer for 18 years, and with 18 years police experience, and I've been to lot of injuries, assaults, and beatings of that nature, and this is one of the worst beatings that I've even [sic] seen, or attacks on an individual, specifically to his face. In view of all of this evidence, there was sufficient evidence for the trial judge to reach conclusion respecting the cause of the injuries beyond reasonable doubt without resorting to medical opinion. On the question of identity, it is true that there was no direct evidence to implicate the appellants. There was, however, strong circumstantial evidence. It is fair to infer that the victim received his injuries at the spot where the pool of blood was found at the southeast corner of the Enjoy Gardens building and next to the 7-Eleven store where the victim went for help after he suffered the injuries. Shortly before the victim went into the 7-Eleven store, three persons saw the victim and the appellants at the spot where the pool of blood was found: Mr. Iluk, the victim's casual acquaintance, and the two doormen at the Checkerdome bar who earlier had escorted the two appellants and the victim out of the bar. In addition to that compelling inculpatory evidence of opportunity, there was the evidence of motive. One of the appellants took umbrage at the victim's having had sexual relations or at least boasting of having had relations with the former's younger sister. The resulting hostility on the part of both appellants manifested itself in the bar at the Checkerdome which precipitated the decision by the doormen to escort the appellants and the victim out of the bar onto the parking lot. The threesome then shortly after were seen to gravitate to the spot where the pool of blood was found. The law in this regard is settled. In Yebes, McIntyre J., after referring to Ferianz, [1962] O.W.N. 40 (Ont. C.A.) and also to R. v. MacFarlane (1981), 61 C.C.C. (2d) 458 (Ont. C.A.) said at p. 432: It may then be concluded that where it is shown that crime has been committed and the incriminating evidence against the accused is primarily evidence of opportunity, the guilt of the accused is not the only rational inference which can be drawn unless the accused had exclusive opportunity. In case, however, where evidence of opportunity is accompanied by other inculpatory evidence, something less than exclusive opportunity may suffice. This was the view expressed by Lacourci�re J.A. in R. v. Monteleone (1982), 1982 CanLII 2162 (ON CA), 67 C.C.C. (2d) 489 at p. 493, 137 D.L.R. (3d) 243 at p. 247, 1982 CanLII 2162 (ON CA), 38 O.R. (2d) 651 (Ont. C.A.), where he said: `It is not mandatory for the prosecution to prove that the respondent had the exclusive opportunity in case where other inculpatory circumstances are proved.' It is also supported by further comments of Martin J.A. in R. v. Stevens (1984), 1984 CanLII 3481 (ON CA), 11 C.C.C. (3d) 518 at p. 534 et seq., and see, as well, Imrich v. The Queen (1977), 34 C.C.C. (2d) 143 at p. 147, 1977 CanLII 27 (SCC), 75 D.L.R. (3d) 243 at pp. 247-8, [1978] S.C.R. 622 at p. 627, per Ritchie J. Here the appellants may or may not have had an exclusive opportunity. If they did not, then the "other inculpatory evidence" of motive and hostility, puts the present case into the category of one where "something less than exclusive opportunity may suffice". In either case thecircumstantial evidence of opportunity is sufficient tosustain a finding of identity beyond a reasonable doubt. As for other reasonable inferences to be drawn from the evidence, in our respectful view the trial judge was correct to find that the evidence does not yield up any such other reasonable inferences. Through the cross- examination of one of the Crown witnesses (the counterman at the 7-Eleven), there was an attempt to formulate an explanation for the unexplained injuries by injecting the notion of an unidentified third person having committed the assault. The testimony in that respect was highly tentative and unsatisfactory. At best it was speculative and cannot form an evidentiary base for reasonable inference. To the foregoing may be added the fact that the appellants both failed to testify. This fact may be taken into account by Court of Appeal when dealing with the question: "Is this reasonable verdict?" (Corbett v. R., 1973 CanLII 199 (SCC), [1975] S.C.R. 275 at 280 and VTzeau v. The Queen, [1977] S.C.R. 277 at 288.) The procedural point raised by the appellants (the calling by the appellants to present argument first when there was no evidence called by them) has no merit. They rely on s. 651(3) of the Code which provides: 651(3) Where no witnesses are examined for an accused, he or his counsel is entitled to address the jury last, but otherwise counsel for the prosecution is entitled to address the jury last. The wording of the provision is clear. It deals with counsel's entitlement to address jury, not with counsel's entitlement to present argument to judge sitting without jury. The statutory entitlement to address jury last may indeed be substantive right of defence, as observed by Dubin J.A. in R. v. Hawke (1975), 1975 CanLII 672 (ON CA), 22 C.C.C. (2d) 19. The traditional entitlement to present argument to a judgesitting without a jury last, however, is a proceduralentitlement to which the curative provision contained in s.686(1)(b)(iv) applies. We would be prepared to invoke thatcurative provision in this instance. In summary, we find that the verdict is not unreasonable, that it can be supported by the evidence, and that the judge made no error of law. In the result theappeal is dismissed.

At trial in Provincial Court, the accuseds called no evidence and were convicted. They appealed on the basis that the Crown's evidence was so insufficient that a verdict of guilty was unreasonable or was one which could not reasonably be supported on the evidence. HELD: Appeal dismissed. 1)No medical evidence was necessary to establish that the victim's injuries were caused by an assault, given the photographs admitted into evidence, the evidence of the police officer who was called to the scene of the assault and the evidence of the 7-11 clerk who was first approached by the victim for assistance. 2)Evidence of exclusive opportunity was unnecessary to sustain a conviction where there was other circumstantial evidence pointing to the identity of the accuseds. 3)Although a failure to permit an accused who calls no evidence to argue last in a jury trial might be a good ground of appeal, the failure to be permitted to argue last before a judge alone was merely a procedural error which could be cured under the curative provision contained in S.686(1)(b)(iv) of the Criminal Code.

4_1994canlii4625.txt

Q.B. A.D. 1994 J.C. R. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: MARY CORSCADDEN, and CROWN LIFE INSURANCE COMPANY, RESPONDENT R. M. Sandbeck for the applicant P. R. McIntyre for the respondent JUDGMENT KLEBUC J. December 2, 1994 NATURE OF APPLICATION Ms. Corscadden seeks a declaration under s. 63 ofThe Personal Property Security Act, S.S. 1979-80, c. P-6.1,that her interest in a group registered retirement savingsplan (later defined as the "Group Plan") is not subject to asecurity interest she granted to Crown Life. She further seeks an order restraining Crown Life from arbitrarily cancelling her participation in the Group Plan. ISSUES The following issues arise: 1.Do the provisions of s. 146(2)(c.3) of the Income Tax Actapply to Ms. Corscadden\'s interest in the Group Plan? 2.Does the taking of security for loan on the Group Plan contravene the provisions of ss. 146(12) and (13) of the Income Tax Act? 3.Does the Plan Contract prohibit Ms. Corscadden from pledging her interest in the Group Plan? 4.May Crown Life realize on Ms. Corscadden's interest in the Group Plan prior to its registration being revoked? 5.Is Crown Life required to transfer Ms. Corscadden's interest in the Group Plan as directed by her? FACTS Crown Life and the association representing its employees known as the "Crown Life Insurance Company, Canadian salaried employees group retirement plan committee" (the "Association") agreed to establish retirement savings plan for Crown Life's employees. To such ends, Crown Life as insurer and the Association as contract holder, entered into group retirement savings plan contract dated December 6, 1985 (the "Plan Contract"), thereby creating group retirement savings plan (herein described as the "Group Plan"), pursuant to s. 146 of the Income Tax Act, R.S.C. 1985, c. (5th Supp.). The Plan Contract sets out the terms on which the Group Plan is to operate, including the basis on which participating employees may withdraw therefrom. To encourage their participation in the Group Plan, Crown Life also provided its employees with interest-free loans. In connection with each loan, Crown Life and the borrowing employee executed printed form of loan agreement prepared by Crown Life. The loan agreement in part provides: In consideration for this loan promise to repay any outstanding principal to Crown Life immediately upon the earliest of: 1.my employment being terminated for any reason; 2.my withdrawal from the Group R.R.S.P.; 3.my ceasing to make the semi-monthly salary deduction payments; or 4.a demand by Crown Life for repayment. At the time of my termination of employment for any reason, hereby authorize Crown Life to deduct the outstanding balance under this loan agreement from any amounts owing to me by Crown Life, including, but not limited to severance or termination pay, final salary or pension refund. also hereby authorize and direct Crown Life to repay itself any outstanding amounts owing under this loan agreement after my termination of employment from the funds in the Group R.R.S.P., or any successor Plan, when Transfer is requested. Crown Life shall be entitled to deduct the outstanding loan and remit the balance to the designated Transferee. Ms. Corscadden entered the employ of Crown Life in February of 1994. Shortly thereafter, she elected to participate in the Group Plan. To finance her contribution of $3,000 to the Group Plan, she obtained an interest-free loan from Crown Life for like amount and executed loan agreement in the prescribed form, under date of February 15, 1994. Ms. Corscadden's employment with Crown Life ended on March 31, 1994. Following her release, she executed and delivered to Crown Life "record of direct transfer under paragraph 146(1)(a)" directing Crown Life to transfer the proceeds of her interest to the Royal Bank of Canada without repaying her indebtedness to Crown Life which was then due and payable. Crown Life in turn ignored her request for direct transfer and advised Ms. Corscadden of its intention to "collapse" her interest in the Group Plan, and to apply the proceeds realized in payment of her outstanding loan obligation. Ms. Corscadden responded by bringing the application now before me. THE LAW Legislative Provisions The statutory provisions governing the creation and operation of registered retirement savings plans are set forth in s. 146 of the Income Tax Act. Of particular significance are the provisions of ss. 146(1), 146(2)(c), 146(2)(c.3), 146(12) and 146(13). Sections 146(1), 146(2)(c) and 146(2)(c.3) in part read: 146. (1) Definitions In this section "retirement savings plan" means (a) contract between an individual and person licensed or otherwise authorized under the laws of Canada or province to carry on in Canada an annuities business, under which, in consideration of payment by the individual or the individual's spouse of any periodic or other amount as consideration under the contract, retirement income commencing at maturity is to be provided for the individual, or (b) an arrangement under which payment is made by an individual or the individual's spouse (i) in trust to corporation licensed or otherwise authorized under the laws of Canada or province to carry on in Canada the business of offering to the public its services as trustee, of any periodic or other amount as contribution under the trust, (ii) to corporation approved by the Governor in Council for the purposes of this section that is licensed or otherwise authorized under the laws of Canada or province to issue investment contracts (iii) as deposit with branch or office, in Canada, of (A) person who is, or is eligible to become, member of the Canadian Payments Association, or (B) credit union that is shareholder or member of body corporate referred to as "central" for the purposes of the Canadian Payments Association Act. (in this section referred to as "depositary") to be used, invested or otherwise applied by that corporation or that depositary, as the case may be, for the purpose of providing for the individual, commencing at maturity, retirement income; 146. (2) The Minister shall not accept for registration for the purposes of this Act any retirement savings plan unless (c) the plan provides that retirement income under the plan may not be assigned in whole or in part; (c.3) the plan, where it involves depositary, includes provisions stipulating that (i) the depositary has no right of offset as regards the property held under the plan in connection with any debt or obligation owing to the depositary, and (ii) the property held under the plan cannot be pledged, assigned or in any way alienated as security for loan or for any purpose other than that of providing for the annuitant, commencing at maturity, retirement income. (Emphasis added) Section 146(2)(c.3) came into force on December 1, 1980. Section 146(2)(c) came into force much earlier. The creation and operation of registered retirement savings plan under s. 146 of the Income Tax Act are fully discussed in Information Circular 72-22R8 published by Revenue Canada. Of particular significance are the provisions of paras. 5, 6, 7, 11, 12 and 13 thereof. Paragraph states that no registered retirement savings plan may be sold until the issuer has submitted specimen retirement savings plan to Revenue Canada and Revenue Canada has approved the same. The documentation to be submitted as part of specimen plan is set out in para. and includes plan contract. Paragraph outlines in detail the mandatory terms to be included in specimen plan including the following: 7. The RSP must (j) prohibit the retirement income from being assigned in whole or in part; and (k) clearly state, when involving depositary, that (i) the depositary has no right of offset as regards the property held under the plan in connection with any debt or obligation owing to the depositary, and (ii) the property held under the plan cannot be pledged, assigned or in any way alienated as security for loan or for any purpose other than to provide the annuitant with retirement income commencing at maturity. (Emphasis added) Paragraphs 11, 12 and 13 of the circular deal with the creation of group registered savings plans of the nature and kind before me. Of particular note are the requirements that either the employer or an employee association must act as agent for the annuitant and that the issuer must deal with Revenue Canada with all matters concerning the retirement savings plan, including any proposed amendment thereof. Judicial Authorities There is authority for the position that retirement savings plans may be assigned or attached by way of security interest, or both, in circumstances where the provisions of s. 146(2)(c.3) did not exist, or were not considered. See: Re Berman (1979), 1979 CanLII 1770 (ON CA), 31 C.B.R. (N.S.) 313 (Ont. C.A.); Re Dowe; Bank of British Columbia v. Thorne Riddell Inc. (1986), 62 C.B.R. (N.S.) 289 (B.C.C.A.); and Re Lifshen, (1978) 25 C.B.R. (N.S.) 12 (Sask. Q.B.). The Saskatchewan Court of Appeal in Bank of Nova Scotia v. Phenix (Bankrupt) et al. (1989), 1989 CanLII 4448 (SK CA), 74 Sask. R. 143, concludes that where retirement savings plan involves depositary, the taxpayer's interest therein may not be pledged as security for loan, and if pledged, the plan will deem to be deregistered and the taxpayer subject to payment of income tax on the proceeds realized therefrom. The Court further concludes that where parties intend to take an assignment or pledge over registered savings plan which involves depositary, their violation of s. 146 of the Income Tax Act renders the assignment illegal and unenforceable. ANALYSIS The parties wish to employ the summary procedures under s. 63 of The Personal Property Security Act to resolve the issues between them. They have further agreed that the loan agreement creates security interest in favour of Crown Life. Accordingly, will deal with the application in summary manner and will assume that security interest exists. Issue No. -Do the provisions of s. 146 (2)(c.3) of the Income Tax Act apply to Ms. Corscadden's interest in the Group Plan? Ms. Corscadden initially submitted that the Group Plan involves depositary within the meaning of s. 146(2)(c.3) but filed no affidavit evidence confirming such fact. Crown Life in turn filed no evidence rebutting the alleged involvement of depositary. Instead, it submitted that since it is life insurance company, the provisions of s. 146(2)(c.3) of the Income Tax Act do not apply to the Group Plan. During argument, counsel for Ms. Corscadden acknowledged that Crown Life is an insurance company and is authorized to issue annuity contracts, but continued to maintain that the ratio in Phenix applied to the Group Plan. Counsel for the parties by agreement filed photocopy of the Group Plan with the court. The Plan Contract provides employees of Crown Life, therein defined as "annuitants", may participate in the Group Plan by making contributions thereto and that such contributions together with interest and other returns earned thereon are to be allocated to an account defined as the "annuitant's account". Crown Life, as the issuer of the Group Plan, covenants to pay to each annuitant the retirement benefit referred to in Article of the Plan Contract immediately upon the annuitant reaching retirement age. In my view the Group Plan falls squarely within the provisions of clause (a) of the definition of "retirement savings plan" in s. 146(1) of the Income Tax Act, namely, contract issued by person authorized to carry on an annuities business, and does not involve depositary of the nature contemplated in clause (b) of the definition. The provisions of s. 146(2)(c.3) therefore do not apply to it. am further of the view that Phenix does not apply to the Group Plan because the relationship between Crown Life and Ms. Corscadden is substantially different from the relationship that arises when credit union, trust company or bank underwrites retirement savings plan. These institutions cannot issue annuities or investment contracts described in clause (b)(ii) of the definition of retirement savings plan in s. 146(1). Consequently, all contributions paid by the taxpayer to such institutions, together with the returns earned thereon, are held by them as deposit or in trust, as the case may be, for the taxpayer until the taxpayer reaches qualifying age at which time the funds so held must be used to purchase qualifying annuity, or transferred to registered retirement income fund ("RRIF") authorized by the Income Tax Act. Issue No. -Does the taking of security for loan on the Group Plan contravene the provisions of ss. 146(12) and (13) of the Income Tax Act? During argument, counsel for Ms. Corscadden suggested the execution of loan agreement had the legal effect of amending the Group Plan and such amendment resulted in her interest in the Group Plan being deregistered by way of the operation of ss. 146(12) and (13) of the Income Tax Act. In support of his argument he referred to the decision of Sherstobitoff J.A. in Phenix (at p. 145) and requested that the loan agreement be declared illegal and therefore unenforceable for the reasons stated by Sherstobitoff J.A. propose to consider whether the loan agreement gives rise to deregistration, and, if so, whether the requested declaration sought should be granted. Subsection 146(12) in part reads: (12) Where, on any day after retirement savings plan has been accepted by the Minister for registration for the purposes of this Act, the plan is revised or amended or new plan is substituted for it, and the plan as revised or amended or the new plan, as the case may be (in this subsection referred to as the "amended plan"), does not comply with the requirements of this section for its acceptance by the Minister for registration for the purposes of this Act, subject to subsection (13.1), the following rules apply: (a) the amended plan shall be deemed, for the purposes of this Act, not to be registered retirement savings plan; and (b) the taxpayer who was the annuitant under the plan before it became an amended plan shall, in computing the taxpayer's income for the taxation year that includes that day, include as income received at that time an amount equal to the fair market value of all the property of the plan immediately before that time. Subsection 146(13) provides: (13) For the purposes of subsection (12), an arrangement under which right or obligation under retirement savings plan is released or under which payment of any amount by way of loan or otherwise is made on the security of right under retirement savings plan, shall be deemed to be new plan substituted for that retirement savings plan. While agree with the interpretation of these subsections by Sherstobitoff J.A. in the context of the Phenix case, in my judgment such interpretation is not applicable to the facts before me. Section 146(13) provides, inter alia, that the taking of security on retirement savings plan for the payment of loan deems the retirement savings plan to be new plan for the purposes of ss. 146(12). Section 146(12) in turn requires the new deemed plan to comply with the general provision of s. 146. In Phenix, the amended plan could not comply because the Bank of Nova Scotia was depositary and therefore the provisions of s. 146(2)(c.3) applied. There being no depositary involved in the matter before me, the taking of security by Crown Life does not result in the deregulation of Ms. Corscadden's interest in the Group Plan. The legal effect of the loan agreement is similar to the security arrangements discussed in McMahon v. Canadian Permanent Trust Company, 1979 CanLII 769 (BC CA), [1980] W.W.R. 438 (B.C.C.A.); Re Berman; and Re Lifshen. Issue No. -Does the Plan Contract prohibit Ms. Corscadden from pledging her interest in the Group Plan? Ms. Corscadden submits that: (1) the provisions of Article 8.03 of the Plan Contract prohibit any assignment or pledge of her interest under the Group Plan and therefore s. 146(2)(c.3) of the Income Tax Act and the reasons in Phenix apply to the Group Plan; (2) the taking of security interest by way of the loan agreement contravenes s. 146(2)(c.3) and Article 8.03 of the Plan Contract; and (3) the contravention of Article 8.03 renders the loan agreement illegal and unenforceable. Article 8.03 of the Plan Contract contains two distinct provisions. They in part read: 8.03 Commutation Assignments No retirement benefit payment payable hereunder is capable, either in whole or in part of surrender or commutation and such payments shall not be subject to any legal process to levy upon or attach the same for payment of any claim against any annuitant, annuitant's spouse or beneficiary. No assignment by an annuitant of any rights or interest under this contract shall be valid (emphasis added) The commutation and surrender provisions contained in Article 8.03 refer to "retirement benefit payment" payable upon an annuitant retiring. There being no evidence before me of Ms. Corscadden having retired, or of retirement benefit payment arising as outlined in Articles 5.02 and 5.03 of the Plan Contract, conclude the commutation and surrender provisions do not apply. The second provision in Article 8.03 consists of prohibition against any assignment. While the intention of the draftsperson may have been merely to comply with the requirements of s. 146(2)(c) of the Income Tax Act by providing that retirement income payable under the Group Plan may not be assigned, the provision goes substantially further than necessary and prohibits assignments of any right or interest in the Group Plan by the annuitant. Consequently, the granting of any security interest by Ms. Corscadden in the Group Plan, which would entitle the secured party to directly attach her annuitant's account or to otherwise collapse her interest in the Group Plan, conflicts with the aforementioned provision, particularly if the rule of contra proferentum is applied. Assuming that the loan agreement gives rise to security interest which enables Crown Life to "collapse" Ms. Corscadden's interest in the Group Plan, the provision in the loan agreement giving rise to such right must be read down to avoid conflict with the provisions of Article 8.03 of the Plan Contract. Such interpretation results in Crown Life having limited right to pursue "pension refunds" and other proceeds in the circumstances described later in connection with issue no. 4. Ms. Corscadden seeks an order restraining Crown Life from "collapsing" her interest in the Group Plan. ShouldCrown Life breach the terms of the Plan Contract, I am of theview that Ms. Corscadden can be amply compensated by way ofdamages. Her application for a restraining order is thereforedenied. Issue No. -May Crown Life realize on Ms. Corscadden's interest in the Group Plan prior to its registration being revoked? The third and fourth paragraphs of the loan agreement provide Crown Life with the limited right to realize on Ms. Corscadden's interest in the Group Plan in two events. Paragraph provides that Crown Life may deduct Ms. Corscadden's indebtedness from any amounts it may owe her, including "a pension refund", following her termination. Paragraph authorizes Crown Life "to repay itself any outstanding amounts owing under this loan agreement" following request for transfer. Before pension refund can exist, Ms. Corscadden's participation in the Group Plan must end. Cancellation of her employment is insufficient, for Article 7.02 of the Plan Contract specifically provides that upon termination of an annuitant, the annuitant's account is to remain with the insurer and the proceeds of the account are to be used to purchase retirement benefit for the annuitant upon the annuitant reaching retirement age. In my view the loan agreement contains no provision enabling Crown Life to collapse Ms. Corscadden's account in the Group Plan and thereby create an attachable pension refund. If it did, such provision would violate Article 8.03 as previously discussed. Similarly, the provisions of s. 58 of The Personal Property Security Act are of no assistance in light of the provisions of Article 8.03. Consequently, no "pension refund" exists which Crown Life could attach. The remedy provided in the fourth paragraph of the loan agreement is dependent on whether proper request for transfer was made by Ms. Corscadden. The same is discussed as part of the fifth issue. am of the further view that nothing in the Plan Contract or the Income Tax Act prohibits Crown Life from setting off Ms. Corscadden's indebtedness to it against any monetary sum due from it to her. Since Ms. Corscadden has notretired and no pension refund exists, there appears to be nomonetary sum current for Crown Life to set off, unless aproper request for a transfer has been made by Ms. Corscadden. Issue No. Is Crown Life required to transfer Ms. Corscadden's interest in the Group Plan as directed by her? Determination of this issue requires consideration of two sub-issues. The first sub-issue is whether Ms. Corscadden's request for transfer of her interest to third party complies with the Plan Contract. The second sub-issue is whether Crown Life is entitled to attach the proceeds of her account, assuming she has complied with the requirements of the Plan Contract relating to transfers. The first sub-issue is fully dealt with by Articles 7.02 and 7.03 of the Plan Contract. As previously mentioned, Article 7.02 provides that upon an annuitant's coverage terminating, the annuitant's account is to remain in place. Article 7.03 in turn provides: Upon written direction from the Contractholder that an annuitant wishes to continue coverage under another Registered Retirement Savings Plan this contract will be amended to allow the value of the annuitant's account, less the market value adjustment to be transferred to another depository in accordance with subsection 146(1) of the Income Tax Act. (Emphasis added) Ms. Corscadden's request for direct transfer does not comply with Article 7.03. Accordingly, she is not entitled to the order directing transfer of the market value of her interest in the Group Plan to the Royal Bank of Canada. Further, her account in the Group Plan was not terminated by the defective request for transfer. Therefore no attachable proceeds exist. Had Ms. Corscadden complied with Article 7.03, am satisfied that Crown Life would be entitled to attach the resulting proceeds pursuant to the terms of the loan agreement in the same manner as the secured party was able to do in Re Dowe and Re Berman, or to assert right of set off. CONCLUSION The Group Plan does not involve depositary and otherwise meets the requirements of s. 146 of the Income Tax Act. Crown Life is not entitled to "collapse" Ms.Corscadden\'s interest in light of the provisions of Article8.03 of the Group Plan. The provisions of the loan agreement do not violate the provisions of the Income Tax Act. The provisions of the Plan Contract regarding transfers of an annuitant's interest have not been complied with. Therefore, Ms. Corscadden's interest in the Group Plan remains in place and no pension refund or "market value of her account" exists upon which Crown Life's security interest can attach. Ms. Corscadden\'s application is dismissed. No costs are awarded to either party in the circumstances.

The Applicant participated in a group retirement savings plan ('GRSP') created by Crown Life for its employees. The GRSP provided for an annuity income on retirement for each participating employee. To finance her contribution to the GRSP, she secured an interest-free loan from Crown Life and pledged her interest in the GRSP as security for the loan. Subsequent to leaving her employment with Crown Life, she refused to repay her loan and requested that her contributions to the GRSP be transferred to another carrier. When Crown Life refused, she applied under s.63 of the PPSA for an order declaring that Crown Life's security interest in the GRSP offended s. 146(2)(c.3) of the Income Tax Act which prohibits the taking of security in an RRSP in certain circumstances. She also sought orders requiring Crown Life to comply with her request to transfer her contributions and restraining Crown Life from realizing on its security. HELD: Application dismissed. 1)The terms of the GRSP and the security agreement in this case did not offend s.146(2)(c.3) of the Income Tax Act. 2)If the terms of the GRSP were breached by Crown Life, damages would be an adequate remedy. The Applicant's request for a restraining order was therefore refused. 3)Under the terms of the GRSP contract, Crown Life was not entitled to collapse the Plan. 4)No amount was due out of the Plan to the Applicant until she retired or made a proper request for a transfer. In this case her request for a transfer did not comply with the terms of the Plan. There was therefore nothing to which the security interest of Crown Life could attach until a proper request for a transfer was made or until the Applicant commenced her pension.

1994canlii4796.txt

J. Q.B. A.D.1996 No. 383 J.C. S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: VIOLA ROSE SIEMENS, PATRICIA JEAN NEUFELD, AND PHILIP CHARLES NEUFELD and KASPER GORDON BAWOLIN, S.V.R. HOLDINGS INC., LYNNE ETHEL BAWOLIN and F.A.M. AUTO INC. DEFENDANTS Brian J. Scherman and for the plaintiffs Karen M. Bolstad Bryan E. Salte for the defendants FIAT HALVORSON J. July 2, 1996 Clearly, the defendant, Kasper Gordon Bawolin ("Bawolin"), has been in contempt of court orders requiring that he account to the plaintiff, Viola Rose Siemens ("Siemens"), for her trust funds. His contempt however, is not as blatant as appeared initially. For example, part at least, of his failure to produce documentation arises from the sorry state of his records. The contempt has been purged sufficiently to permit the Court to withdraw from further intervention. Proper identification of assets has resulted largely through production orders against third parties, but also, through belated efforts by Bawolin. Additional information demandedby Siemens can be obtained through the normal discoveryprocess. That is not to say Siemens cannot move for relief if Bawolin displays intransigence. All that remains at this juncture is the issue ofresponsibility for the legal costs incurred by Siemens tocompel production. This question would not be so vexing but for the fact her solicitor/client bill for this service exceeds $50,000.00, including very large disbursements. There is good reason. When the third party order was sought, there appeared to be an urgent need to preserve Siemens' property. trustee was appointed, and the files of Bawolin were seized. Then an accountant prepared what amounted to forensic audit. All of this was very expensive. Counsel for Siemens urges me to order Bawolin to payforthwith, the solicitor/client costs to be taxed. There ismerit to this submission. Even if Siemens was substantiallyunsuccessful at trial in her allegations of wrongdoing byBawolin, still, he ought to pay these costs because he causedthe expense of the pre-trial production by his stallingtactics. Counsel for Bawolin argues that these costs should beleft to the discretion of the trial judge. As I see it, thisis the more appropriate route in the circumstances. When all the evidence is in, it may transpire that Siemens was in fact, indebted to Bawolin as he now says, at the time of the contempt. Such turn of events would not excuse his disobedience of the court orders, but it might influence the trial judge on the matter of costs. Moreover, the judge might conclude, once the whole story is revealed, that the legal costs incurred to enforce production are out of proportion to any gain which Siemens could reasonably have expected to achieve. Costs are left to the trial judge.

FIAT. The defendant had been held in contempt of court orders requiring that he account to the plaintiff for her trust funds. The issue here was responsibility for the legal costs incurred by the plaintiff to compel production. Her solicitor/client bill exceeded $50,000 including very large disbursements as a trustee was appointed to preserve the property and the defendant solicitor's files were seized. An accountant then prepared what amounted to a forensic audit.HELD: The court was able to withdraw from further intervention. Additional information could be obtained through the normal discovery process. 1)The contempt was not as blatant as first appeared. Part of his failure to produce documentation arose from the sorry state of his records and proper identification of assets was due in part to production orders against third parties. 2)The defendant solicitor ought to pay the solicitor/client costs because he caused the expense of pre-trial production by his stalling tactics. However the appropriate route in the circumstances was to leave costs to the trial judge. It may be that the plaintiff was indebted to the solicitor at the time of the contempt which would not excuse his failure to comply with the court order but may influence the matter of costs. It may also be that the legal costs incurred to enforce production were out of proportion to any gain the plaintiff could have expected.

1996canlii7150.txt

J. 1999 SH 155064A IN THE SUPREME COURT OF NOVA SCOTIA v. EVERETT ROGER STUCKLESS SENTENCE BREACH OF PROBATION HEARD: before the Honourable Chief Justice Joseph P. Kennedy, Supreme Court of Nova Scotia, Halifax, Nova Scotia, August 13, 1999 DECISION: August 13, 1999 WRITTEN RELEASE: October 14, 1999 COUNSEL: Robert McCarroll for the Crown Donald L. Presse, for the defence Kennedy, C.J.: (Orally) am going to accept the recommendation of both the Crown and Defence in relation to his appeal. I am doing so on the basis that when I read the decision of Judge Williams, actually, his decision is ambiguous to the extent that, although he appears to believe that the Tan case requires that a second conditional discharge not be made available in relation to the matter arising out of similar circumstances in relation to a prior discharge. Although he believes the Tan case dictates that situation, he nevertheless, during the course of that decision, appears to do the requisite test in determining the use of conditional discharge, so there is degree of ambiguity in relation to the matter. What is clear though, to me, is that he starts the process by indicating to counsel that he believes that he is constrained and finishes his decision with a reference to the Tan case at page 13 of the abstract that I have, where I note and I state that R. v. Tan (1974), 1974 CanLII 1608 (BC CA), 22 C.C.C. (2d)184 (B.C.C.A.) stands for the proposition that an accused may not receive a discharge where he has already received a discharge for another offence. In fact Tan does not stand for that proposition, it is not nearly so rigid and that causes me the concern that have, that the learned Provincial Court Judge misconstrued the situation at that time. Having come to that conclusion, am going to overturn the determination of that learned judge. I am going to accept the joint recommendation of counsel that was made before him, and is again made before me, that there be a conditional discharge, three years probation, absolutely no contact direct or indirect with the named victim. It was the nature of the contact and the other circumstances surrounding the contact in this specific that allows for further discharge. am satisfied that can substitute the sentence in relation to this specific and it seems to me to be the reasonable way to proceed. Would you stand please Mr. Stuckless. Mr. Stuckless, wanted you here, particularly, because, want to make very sure that you understand why you got into this situation today, why you got into this mess. As you were dialing that number you should have been contemplating the mess that you were creating, but more directly and importantly at this stage in the process, want you to understand and to make sure that you do not misunderstand, that you will not violate the order that am about to make, with impunity. Should there be further contact of any nature on your part with the woman involved, you will not have to worry about discharge, it will be quite simply, question of how long period of time you are going to be incarcerated. want you to know that so you will not jeopardize your future in that respect, you will not misinterpret the position of this Court. know you won’t. This is another opportunity, Mr. Stuckless, to do the right thing and to get yourself into good situation, don’t blow it. You may be seated please. am going to direct an order as indicated. Chief Justice Joseph P. Kennedy Halifax, Nova Scotia

At issue in this sentencing appeal for breach of probation was whether or not a person can receive a second conditional discharge in relation to a matter arising out of similar circumstances in relation to a prior discharge. allowing the appeal, sentencing the offender to three years probation with conditions, that an offender may receive a discharge where he had already received one for another offence.

1999canlii1674.txt

QB A.D. 1998 151 J.C.Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: DAVID SAWKIW and SASKATCHEWAN GOVERNMENT INSURANCE RESPONDENT David Rusnak for the applicant Carol Kraft for the respondent JUDGMENT PRITCHARD J. September 4, 1998 [1] David Sawkiw\'s ("Sawkiw") income replacementbenefits under The Automobile Accident Insurance Act, R.S.S.1978, c.A-35, (the "Act") were terminated by the respondent,Saskatchewan Government Insurance, ("SGI") and Sawkiw hasapplied to this court pursuant to s. 197 of the Act for anorder setting aside such termination. [3] The termination of benefits was made pursuant to s. 185 of the Act which provides: "185 The insurer may refuse to pay benefit to person or may reduce the amount of benefit or suspend or terminate the benefit, where the person: (a) knowingly provides false or inaccurate information to the insurer; (b) refuses or neglects to produce information reasonably required by the insurer for the purposes of this Part or to provide an authorization reasonably required by the insurer to obtain the information; (c) without valid reason, refuses to return to his or her former employment, leaves an employment that he or she could continue to hold, or refuses new employment; (d) without valid reason, neglects or refuses to undergo and examination by practitioner, or interferes with an examination by practitioner, requested or required by the insurer; (e) without valid reason, refuses, does not follow or is not available for treatment recommended by practitioner and the insurer; (f) without valid reason, prevents or delays recovery by his or her activities; (g) without valid reason, does not follow or participate in rehabilitation program made available by the insurer; or (h) prevents or obstructs the insurer from exercising any of its rights of recovery or subrogation pursuant to this Part." [5] On April 14, 1997 Sawkiw was in motor vehicle accident and suffered soft tissue injuries to his cervical spine. His vehicle was struck from behind by an uninsured driver. Sawkiw is a farmer and pursuant to the Act, hereceived a partial income replacement benefit from SGI onthe basis that he was not able to perform some but not allof his farm duties. Following the accident and until August, 1997 he was receiving physiotherapy two to three times per week in Preeceville where he lives. As his condition was not improving, SGI arranged for secondary assessment to be done on August 17, 1997 at physiotherapy clinic in Yorkton. Following this assessment, Sawkiw was scheduled for daily physiotherapy in Yorkton commencing September 24. This physiotherapy was to continue for period of six weeks with three to four hours of rehabilitation each day. The return trip between Preeceville and Yorkton is approximately 200 kilometers. While attending physiotherapy in Yorkton, Sawkiw was entitled to receive mileage and meal allowance in addition to the partial income replacement benefits. Sawkiw attended physiotherapy in Yorkton on September 24, 25, 26 and 29. He was not there on September 30 but he attended once again on October 1, 1997. [6] October was not good day for Sawkiw. Some of the details of that day are contained in paragraph of the affidavit of Joe Saul, an exercise therapist at the physiotherapy clinic that Sawkiw was attending in Yorkton. Further details are contained in paragraphs and of the affidavit of Ken Redl, physiotherapist at the same clinic. Affidavit of Joe Saul "2. That on the morning of October 1, 1997, Mr. Sawkiw was performing his exercises at the Centre and went over to check on him and see how he was doing. At that time, Mr. Sawkiw advised me that he was very unhappy with the fact that he had to come in to Yorkton for treatment every day. He said that he had disabled wife and that he did not have time to come in every day and then go back to the farm and do all the farm work after he was tired from his treatment. He complained about the amount of money that SGI was paying him and that he couldn't afford to be attending treatment every day. He complained that SGI was pushing him and pushing him and that he could feel himself starting to snap. He then told me "that someone is going to get killed over this and it'll probably be me, but I'm going to take somebody with me." Affidavit of Ken Redl "5. At approximately 10:00 a.m. on October 1, 1997, Mr. Joe Saul, one of my employees, the exercise therapist, reported to me that Mr. Sawkiw had made some disturbing comments. Particulars of these comments are contained in the Affdidavit (sic) of Mr. Saul. intended to let Mr. Sawkiw's frustrations settle before talked to him about his incident, however, later that same morning, at approximately 11:50 a.m., heard him again mention killing someone. At that time heard Mr. Sawkiw tell another patient that he was very angry with SGI and their handling of his claim and perhaps killing someone and/or himself would be an option. was in treatment room with the door open with another patient at the time overheard Mr. Sawkiw make these statements. 6. Approximately 10 minutes later, at 12:00 noon, had private meeting with Mr. Sawkiw. He again expressed anger and frustration with SGI and their control over his medical appointments and their Income Replacement Benefits and the lack of proper compensation. He did not again mention killing anyone at this time, however, upon leaving the meeting he did say "I wonder how those suicide bombers feel?". asked Mr. Sawkiw to contact his family physician, Dr. Ellis, to discuss his stresses at this time. also mentioned to him that Dr. Ellis would possibly refer him for psychiatric counseling [7] Following the incident, Sawkiw was interviewed by the police as set out in paragraph 19 of his supplementary affidavit sworn June 2, 1998: "19. THAT following my departure from Yorkton Physiotherapy, the Police attended at the Physiotherapy Centre where was interviewed and explained to them the situation as have to the Court in my Affidavit, about my frustration over being hit by drunk driver and having no insurance coverage, my life being disrupted, that of my wife being totally disrupted, me having to drive significant distance daily for the purpose of physiotherapy treatments which were giving me very little if no relief." [8] Sawkiw was clearly in the depths of despair on October 1, 1997. The extent of his despair may not have been predictable, but the evidence establishes that SGI had prior knowledge that Sawkiw was suffering from depression. concern regarding Sawkiw's emotional state is clearly identified in the report of Lornen J. Nischuk, Doctor of Chiropractic. The report was prepared following the August 19, 1997 secondary assessment conducted at the request of SGI. It is addressed to SGI and contains the following information: ... ACCIDENT HISTORY Mr. David Sawkiw, 44 year old farmer, bobcat operator, mechanic-welder, was involved in motor vehicle accident on April 14, 1997. ... He remembers being very angry at the person who hit his vehicle. PRESENT STATUS ... Another factor that aggravates his problem is thinking about his neighbor (sic) that ran into his truck. Just the mention of his neighbour causes overwhelming anger and resentment. Mr. Sawkiw believes that his neighbours (sic) drinking problems and driving will cause someones (sic) death. Mr. Sawkiw is bitter that his lifestyle has so completely changed because of this senseless accident. PERSONAL PROFILE Mr. David Sawkiw is 44 year old caucasian (sic) male. He is 5' 6" and weighs about 160 lbs. He is pleasant and easy to talk with. He smokes about half pack of cigarettes daily and hasn't drank alcohol since 1985. He is married but has no children. Shortly after getting married his wife had brain hemorrhage which resulted in her whole right side being disabled. This has left him with no one to help him with his duties. Also, he must do alot (sic) of things for his wife that she would normally do on her own if she were well. But, because of his condition, he is unable to do much and this has caused alot (sic) of stress, frustration, depression and anger. He doesn't sleep well, he finds himself eating too much and is upset about gaining weight. He has been fighting and arguing with his wife more frequently. There are things to do but no one to help do them. They burn wood to heat their house and the wood supply is low. The yard is very unkept and so is the house. The house also needs to be reshingled. ... His other concerns, that he asked; will he ever get better in regards to his headaches. How will he take care of his wife? QUESTIONNAIRE RESULTS On the Neck Disability Questionnaire, he scored 62% disabled. With total of 15 on the depression scale, this indicates moderate degree of depression. On the Stress Event Scale, he scored 308. This rates 50% to 80% chance of illness. The events that he checked off included personal illness, financial status (foreclosure), change of work abilities, marital arguments, loans and work responsibilities. 3. possible post-traumatic stress disorder. He has lot of anxiety overiding (sic) psychosocial stresses and concerned degree of depression. ... RECOMMENDATIONS 2. Referral to psychologist for evaluations for concerns of depression. [9] Despite the recommendation of SGI's assessor, there is no evidence that prior to October 1, 1997 SGI made any arrangements for Sawkiw to receive psychological evaluation or any treatment for his depression or that he refused any opportunity for such assistance. [10] As result of the October 1, 1997 incident, Sawkiw was discharged from the physiotherapy clinic in Yorkton "for inappropriate behaviour" and on October 16, he was sent letter by SGI advising that he had been referred to Wascana Rehabilitation Centre ("Wascana") in Regina for secondary/tertiary assessment. The assessment was scheduled for October 23 and 24. The letter was explicit that failure to attend without valid reason could result in termination of benefits. [11] On October 17 or 18 Sawkiw received notice of possible welding job in Edmonton, Alberta. On October 18 he wrote letter to SGI advising that he was unable to attend Wascana on October 23 as he had pending job interview in Alberta. Sawkiw went to Edmonton, secured the job and worked there until February, 1998 when his position became redundant. Sawkiw then returned to Saskatchewan. [12] Sawkiw's benefits were terminated October 23, 1997. registered letter advising him of the termination was sent October 31, 1997. On November 17 he sent letter to SGI stating he disagreed with its decision to terminate his benefits and requesting an review of the decision. On January 16, 1998 letter of explanation from SGI was sent to him. The letter begins: "RE: Application for Review Our File: Y2478593 Please be advised that we have now completed our review. We remain of the opinion that your benefits under the Personal Injury Protection Plan were appropriately terminated. Please let us [13] The letter then briefly recites most of the same facts that are more fully set out herein followed by list of the eight conditions set out in s. 185 of the Act under which SGI may refuse to pay benefits or reduce the amount of benefits. After these eight reasons are listed, the SGI review officer concludes: "In view of this, feel the action of terminating your benefits was appropriate." No further explanation is given and the letter does not indicate which of the enumerated eight grounds SGI was relying on as the basis for terminating Sawkiw's benefits. [14] On the hearing of this application SGI indicated that it terminated Sawkiw's benefits pursuant to subsections (d), (e), (f), (g) of s. 185 under which it is authorized to do so where the person: "(d) without valid reason, neglects or refuses to undergo and examination by practitioner, or interferes with an examination by practitioner, requested or required by the insurer; (e) without valid reason, refuses, does not follow or is not available for treatment recommended by practitioner and the insurer; (f) without valid reason, prevents or delays recovery by his or her activities; (g) without valid reason, does not follow or participate in rehabilitation program made available by the insurer;" [15] SGI contends that the termination was appropriate because Sawkiw was not available for recommended treatment, did not follow or participate in rehabilitation program, or neglected or refused to undergo an examination. It argues that Sawkiw failed to comply with recommended treatment in two ways: "First, he caused his early discharge from the Yorkton Physiotherapy Secondary Treatment Centre; and secondly, he failed to attend scheduled assessment at Wascana Rehabilitation Tertiary Centre." According to SGI, the only issue is whether or not Sawkiw had "valid reason" for his failures. [16] Sawkiw's reasons for not attending at Wascana are set out in his October 18, 1997 letter to SGI: "RE: Your letter October 16, 1997 regret to inform you that will not be attending the secondary assesment (sic) at the Wascana Rehab. Centre. will be going to Alberta tomorrow a.m. for job interview. The reason being that can no longer persue (sic) my present carreer (sic) due to the headaches from the accident. Hopefully I'll be able to start all over with something new. simply cannot continue with your programs keep the farm going, the money you pay is just not enough. My car is worn out will not last much longer, cannot afford new one. My farm work custom work has been falling back since the accident, cannot catch up. cannot afford to pay any one to help me out. have already used up most of the favours from friends, neighbors (sic) and relatives. As you know my wife is disabled cannot find employment to help out. If your "rules" determine that you discontinue my benefits, it just proves how the Government's "system" has failed again. Hit by disqualified drunk, now will likely loose (sic) the farm. Thank you for all the [17] It is apparent that Sawkiw realized that he risked losing his benefits under the Act if he failed to attend his October 23 appointment at Wascana. It is equally apparent that on October 18 Sawkiw believed that he was in desperate and precarious financial position and that his only option was to seize the opportunity for off- farm employment. SGI contends that looking for alternate work because his injuries prevented him from continuing with his farming operation is not valid excuse for Sawkiw's failure to attend his scheduled assessment at Wascana. In this regard, SGI submits that it was paying Sawkiw partial income replacement benefit to compensate him for those duties he was unable to perform on the farm and that it was facilitating proper treatment to assist him in returning fully to his pre-accident farming activities. The court does not agree with either submission. [18] The evidence establishes that as at October 23, 1997 SGI was only paying Sawkiw partial income replacement benefit. This may have been sufficient prior to September 24 but as of that date, SGI was requiring Sawkiw to attend daily physiotherapy of to hours duration with approximately 22 hours of additional travel time. It is common knowledge that pain can be exhausting; that daily physiotherapy can be exhausting; that daily travel of 22 hours can be exhausting; that the physical demands of farming can be exhausting; and, that the mental demands of managing farm and coordinating and organizing the work of others on the farm can be exhausting. In these circumstances, it is far from clear as to how SGI expected Sawkiw to devote approximately to hours per day to his treatment program and still have the mental and physical reserves to devote any time or energy to his farming operations. As at September 24, 1997 Sawkiw could onlyreasonably be expected to participate in daily physiotherapyin Yorkton if he was receiving a full, rather than partialincome replacement benefit. Also, as at August 29, it was apparent that Sawkiw required psychological or other similar type services to deal with his depression and anger. Undoubtedly, the depression and anger were not caused by the accident but Dr. Nischuk's report to SGI clearly identifies psychosocial issues as barriers to Sawkiw's recovery. He may have been coping with his various stresses up to the time of the accident but the accident appears to have been the proverbial last straw. By October 1, 1997 Sawkiw was in the depths of despair and the evidence confirms that the injuries sustained in the motor vehicle accident were contributing factor. Although the clock can not be turned back, it is very possible that if Sawkiw had been receiving appropriate psychological assistance and full rather that partial income replacement benefit, that he may not have felt forced to abandon all efforts at rehabilitation intended to assist him in ultimately carrying on his pre- accident employment in order to take up alternate employment in Alberta. [19] Based on the foregoing, the court is not prepared to find that Sawkiw caused his early discharge from the Yorkton Physiotherapy Secondary Treatment Centre or failed, without valid reason to attend his scheduled assessment at Wascana. To the contrary, the court finds that SGI\'s failureto make a suitable rehabilitation program available toSawkiw prior to October 1 and its failure to reassess hislevel of income replacement benefits as at September 24were significant factors that contributed to Sawkiw\'sdesperate circumstances in October, 1997 and resultingconduct on October 1 and thereafter. The court thereforefinds that SGI was not entitled to terminate Sawkiw\'sbenefits pursuant to s. 185(d), (e), (f) or (g). Accordingly, pursuant to s. 198(3)(a), the termination made by SGI under s. 185 is hereby set aside. [20] When SGI terminated Sawkiw's benefit's pursuant to s. 185, it had not received notification from Sawkiw that he was employed full time in Alberta. Sawkiw was required under s. 175 of the Act to keep SGI informed of such change in circumstances. Section 129(1)(e) is relevant to this change and provides: "129(1) Notwithstanding any other provision of this Division, victim ceases to be entitled to an income replacement benefit when any of the following occurs: ... (e) the victim holds an employment from which the gross yearly employment income is equal to or greater than the gross yearly employment income on which victim's income replacement benefit is calculated." No evidence was lead to establish that Sawkiw's employment income in Alberta was equal to or greater than the gross yearly employment income on which his income replacement benefit was calculated. Nevertheless, the court is prepared to so find. Accordingly, pursuant to s. 198(3)(b), the courtfinds that in accordance with s. 129(1)(e) Sawkiw\'s incomereplacement benefits are properly terminated effective thefirst day of his employment in Alberta. However, for reasonspreviously stated, for the period September 24, 1997 to thedate of termination pursuant to s. 129(1)(e) the court findsthat Sawkiw was entitled to be paid a full incomereplacement benefit without adjustment for a partial returnto work. SGI shall therefore pay to Sawkiw the difference,if any, between the amount paid to Sawkiw for the periodSeptember 24 to October 23, 1997 and the amount required tobe paid pursuant this judgment for the period September 24to the date of Sawkiw\'s commencement of employment inAlberta. Sawkiw shall also be entitled to interest on suchamount from the date such additional benefits should havebeen paid until the date of this judgment. Sawkiw shall be responsible for providing SGI satisfactory evidence as to the commencement date of his employment in Alberta. [21] Sawkiw's employment in Alberta has been terminated. The employment was not terminated because of Sawkiw's injuries sustained in the motor vehicle accident. Nevertheless, the termination has resulted in Sawkiw returning to Saskatchewan and presumably to his pre-accident employment. There is no medical evidence as to his current condition but Sawkiw believes that he continues to have an ongoing disability. He seeks the opportunity to be reviewed by Wascana. In all of the circumstances, the court is prepared to permit him that review. SGI will thereforearrange for Sawkiw to forthwith be assessed by Wascana. Ifit is found that as a result of the accident, Sawkiw iscurrently unable to hold the employment that he held at thetime of the accident, SGI is encouraged to consider Sawkiw\'scondition as a relapse under s. 142(1)(a) of the Act. In this regard, it is to be noted that under the terms of this judgment, Sawkiw's final income replacement benefit will be an income replacement benefit other than one made pursuant to section 139 or 140. [23] Sawkiw shall be entitled to his solicitor and client costs respecting services rendered and disbursements incurred from the date of filing his notice of motion to the date this judgment is received. He shall also be entitled to his costs associated with preparing and filing his notice of motion which costs are set at $600.00 being the maximum amount payable under The Personal Injury Benefits Regulations. J.L.G PRITCHARD, J.

An application pursuant to s197 of the Automobile Accident Insurance Act for an order setting aside SGI's termination of the applicant's income replacement benefits. The applicant suffered soft tissue injuries to his cervical spine when his vehicle was struck from behind by an uninsured driver. He received a partial income replacement benefit from SGI on the basis he was not able to perform some but not all of his farm duties. HELD: 1)SGI was not entitled to terminate Sawkiw's benefits pursuant to s185(d), (e), (f) or (g). SGI's failure to make a suitable rehabilitation program available to Sawkiw prior to October 1/97 and its failure to reassess his level of income replacement benefits as at September 14 where significant factors contributing to his desperate circumstances. SGI was requiring Sawkiw to attend daily physiotherapy of 3 to 4 hours duration with approximately 2-1/2 hours of additional travel time. It is common knowledge that pain can be exhausting; that daily physiotherapy can be exhausting; that daily travel of 2-1/2 hours can be exhausting; that the physical demands of farming can be exhausting; and, that the mental demands of managing a farm and coordinating and organizing the work of others on a farm can be exhausting. It was far from clear how SGI expected Sawkiw to devote approximately 6 to7 hours per day to his treatment program and still have the mental and physical reserves to devote any time or energy to his farming oprations. He could only reasonably be expected to participate in daily physiotherapy if he was receiving a full, rather than a partial income replacement benefit. 2)The benefits were properly terminated pursuant to s129(1)(e) the first day of his full time employment in Alberta. However, from September 14/97 to the date of termination Sawkiw was entitled to be paid full income replacement benefit without adjustment for a partial return to work. Sawkiw was entitled to the difference and interest from the date such additional benefits should have been paid until the date of this judgment. 3)SGI was to arrange for an assessment by the rehabilitation centre forthwith. If it is found that as a result of the accident Sawkiw is not able to hold the employment he held at the time of the accident, SGI is encouraged to consider his condition as a relapse under s142(1)(a). Under the terms of this judgment the final income replacement benefit will be other than one made pursuant to s139 or 140. 4)Sawkiw was entitled to his solicitor and client costs respecting services rendered and disbursements incurred from the date of filing his notice of motion to the date this judgment is received. He was also entitled to his costs associated with preparing and filing his notice of motion set at $600 being the maximum amount payable under the Personal Injury Benefits Regulations.

5_1998canlii13955.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 111 Date: 2007 03 28 Docket: Q.B.G. No. 1835/2006 Judicial Centre: Regina BETWEEN: ROBERT G. BRICK and 618820 SASKATCHEWAN LTD. and MODUS RESOURCES LTD., SPECTRUM RESOURCE GROUP INC., TRIASSIC RESOURCES LTD., ZARGON OIL GAS LTD. and THE REGISTRAR OF LAND TITLES RESPONDENTS Counsel: David J. Bishop for the applicants G. Brett Ledingham for the Modus Resources Ltd., Spectrum Resource Group Inc. and Triassic Resources Ltd. J. Paul Harasen for Zargon Oil Gas Ltd. Jerome A. Tholl for the Registrar of Land Titles FIAT POPESCUL J. March 28, 2007 [1] caveat registered by Robert G. Brick (“Mr. Brick”) was removed as result of the notice to lapse procedure. The notice to lapse process was commenced under the old land titles system and completed after conversion to the new land titles system. Mr. Brick and related company now apply for declaration that the caveat was wrongfully removed by the Registrar of Titles (“Registrar”) and that the caveat be reinstated retroactively to the date of its removal. The companies that acquired an interest in the South West Quarter of Section Twenty-seven (27), in Township Two (2), in Range Four (4), West of the Second Meridian, in the Province of Saskatchewan, in the Dominion of Canada, as more particularly described and set forth in Certificate of Title No. 98SE24393 (“the subject land”) subsequent to the caveat being removed oppose the application, as does the Registrar. [2] Mr. Brick registered caveat against the mineral title of the subject land on November 3, 1972. The caveat purported to be based upon right to receive royalties from all gas, oil and carbon products produced from the land. The caveat was lapsed by the land owner in 1974. In 1975 the land owner consented to the re‑registration of the caveat. However, for reasons unknown, the caveat was not re‑registered at that time. [3] In 1984 Mr. Brick assigned his alleged royalty interest to his sons. In 1986 Mr. Brick discovered that the caveat he believed had been re-registered in 1975 had, in fact, not been re-registered. On January 13, 1986, Mr. Brick then registered another caveat against the property claiming that, on the date of that registration, he had current interest in the property. In 1997, Mr. Brick’s sons assigned the alleged royalty interest to 618820 Saskatchewan Ltd., (“618820”). [4] On November 15, 2001, Prairie Land Investment Services Ltd. requested that the Registrar register notice to lapse the January 13, 1986 caveat. notice to lapse caveat was registered on the subject land’s certificate of title and the prescribed notice was mailed by the Registrar pursuant to s. 159(2) of The Land Titles Act, R.S.S. 1978, c.L-5 to Mr. Brick on November 21, 2001. The notice was sent by registered mail to Mr. Brick’s address for service as set forth in the caveat as prescribed by the statute. The effect of notice to lapse is that the caveat automatically lapses at the expiration of 30 days from the mailing of the notice by the Registrar, unless the caveator files judge’s order continuing the caveat. Mr. Brick denies that he ever received the notice. [5] In 2001 the paper based land titles system was in the process of being converted to an automated system via the LAND project (Land Titles Automated Network Development project). The date of proclamation for the land registration district within which the subject land was situated was December 1, 2001. [6] Mr. Brick did not obtain court order providing for the caveat to continue beyond the 30 days. Therefore, at the expiry of the 30-day period on December 21, 2001, the Registrar endorsed the title to proclaim that the caveat had lapsed. [7] In 2003 Zargon Oil Gas Ltd. (“Zargon”) acquired mineral interest in the subject land and registered “caveats” (which are now described under the new land titles system as “Miscellaneous Interests”) on October 2, 2003 and August 16, 2005. In July 2005, the fee simple ownership of the subject land was transferred to Modus Resources Ltd. (“Modus”), Triassic Resources Ltd. (“Triassic”) and Spectrum Resources Group Inc. (“Spectrum”). At the time when Zargon registered its Miscellaneous Interest and at the time that Modus, Triassic and Spectrum acquired fee simple ownership in the subject land, the caveat of Mr. Brick was not registered. [8] Mr. Brick says that it was only in 2006 that he first became aware that the caveat that he registered on January 13, 1986 had lapsed on December 21, 2001. Mr. Brick complained to Information Services Corporation of Saskatchewan (“ISC”), which is the corporation that administers the new land titles system. ISC wrote to the respondents indicating that it had recently come to their attention that Mr. Brick’s caveat had been omitted from the title of the subject property in “error.” The letter sought the respondents’ consent to “correct this error.” [9] The respondents refused to provide their consent. ISC said that, absent the consent of the respondents, it was not prepared to take any action. Mr. Brick and 618820 then brought this application seeking a declaration that the caveat was wrongfully removed by the Registrar, an order that the caveat be reinstated retroactively and costs. THE POSITION OF THE APPLICANTS [10] The applicants contend that the royalty interest claimed by Mr. Brick is valid and subsisting interest in land capable of being protected by caveat. The fact that Mr. Brick had assigned his interest to his sons in 1984 but registered the caveat in 1986 does not matter because, they say, he still had the right to give notice by caveat of the interest either in his own right or as an agent of his sons. They further argue that when the new land titles system was implemented part way through the lapsing process, the process underway ought to have been aborted, and restarted under the new system. Therefore, they contend that the Registrar wrongfully removed valid caveat. They further submit that the letters from ISC in which there is discussion of an “error” is an admission of liability. In order to remedy the problem the applicants take the position that this Court ought to acknowledge that there was an error and reinstate the caveat retroactively. Alternatively, they argue that if retroactive reinstatement of the caveat is not found to be the appropriate remedy, the Court ought to declare that the caveat was wrongfully removed, a necessary first step in accessing the assurance fund. THE POSITION OF THE RESPONDENT COMPANIES [11] The respondent companies argue that Mr. Brick had no interest in land capable of supporting the caveat at the time it was registered on January 13, 1986. This is because this type of alleged royalty interest is not an interest capable of being protected by caveat and, even if it was, Mr. Brick had assigned his interest to his sons and therefore did not personally have an interest in land capable of supporting caveat. They also argue that Mr. Brick does not have an interest in the subject land at this time because the land is now owned by 618820. [12] The respondents also take the position that even if the caveat was valid, it was properly removed from the title as result of the notice to lapse procedure. While the legislation that introduced the new land titles system contains transitional provisions that stipulate that any process started under the old Act is to be completed under the new Act, as far as practicable to do so, they argue that in this case, it was not practicable to do so. [13] Finally, these respondents claim that even if the caveat was removed improperly, retroactive reinstatement of the caveat is not a permissible remedy due to the principle of indefeasibility of title. The applicants’ remedy, if any, they say is to the assurance fund. THE POSITION OF THE REGISTRAR [14] The Registrar contends that the caveat was not removed improperly. The Registrar had two feasible options in relation to how to address lapse procedures commenced under the old system but not yet completed as of the date of conversion. The first was to continue the process begun under the old system and automatically record the lapsing of the caveat upon the expiry of the 30 days from the mailing of the notice to lapse. The only step remaining was to endorse memorandum on title of the lapse of the caveat. The second option was to require the party seeking to lapse the caveat to take the second step under s. 46(2) of The Land Titles Regulations, 2001, R.R.S., c. L-5.1, Reg. 1, and apply to the Registrar to discharge the interest to be lapsed, with accompanying affidavit pursuant to s. 46(3) confirming that notice has been served on the interest holder and that no court order had been made extending the registration of the interest beyond the 30 day notice period. The Registrar determined that it made more sense to adopt the first option. As result, the Registrar denies that any error was made. [15] Insofar as the alleged admission contained in correspondence from ISC staff is concerned, the Registrar’s position is that the intention of the letters was to determine whether an alleged error could be corrected by consent. When consent was not forthcoming, the Registrar was not prepared to take any unilateral action. Furthermore, the Registrar argues that the alleged admission of culpability by staff member is not binding upon her. [16] Finally, the Registrar argues, even if an error was made, as result of the principle of indefeasibility of title, the retroactive reinstatement of the caveat is prohibited remedy. ISSUES 1. Should the caveat be reinstated retroactively by order of the Court? 2. Should this Court entertain an application for declaratory relief respecting the issue of whether or not the caveat was removed improperly? 1. Should the caveat be reinstated retroactively by order of the Court? [17] I agree with the position of the respondents that even if the caveat was removed improperly, this Court ought not retroactively reinstate the caveat because to do so would defeat the fundamental principle of indefeasibility of title that has been continued in The Land Titles Act, 2000, S.S. 2000, c. L-5.1. [18] At the time that Zargon, Modus, Spectrum and Triassic acquired their respective interests in the subject land, the searches at ISC would have revealed that the caveat of Mr. Brick was not registered. These parties were entitled to rely on their searches that disclosed no registered interest of Mr. Brick. [19] The integrity of the land titles system in Saskatchewan has long depended on the fundamental principle of indefeasibility of title. party intending to obtain an interest in land in Saskatchewan is entitled to rely on the certificate of title being correct and conclusively representing all interests in the land without having to look behind the title to determine if there are any unregistered interests. This principle has often been referred to as the “curtain” principle of the Torrens system. This principle is absolute and is subject only to statutory exceptions or the effects of fraudulent activities, none of which are relevant to the matter before the Court (see Hermanson v. Martin, 1986 CanLII 3241 (SK CA), [1987] W.W.R. 439 (Sask. C.A.)). [20] The principle of indefeasibility of title was not materially altered by the passage of The Land Titles Act, 2000. In fact, this principle appears to have been expressly incorporated into the new legislation in Part III entitled “Fundamental Principles.” For example see sections 13(1) and 14 which read as follows: 13(1) Where the Registrar issues title pursuant to this Act: (a) subject to section 14, the registered owner holds the title free from all interests, exceptions and reservations; and (b) subject to section 15: (i) the title is conclusive proof that the registered owner is entitled to the ownership share in the surface parcel, mineral commodity or condominium unit for which the title has issued; (ii) the title may not be altered or revoked or removed from the registered owner; and (iii) no action of ejectment from land or other action to recover or obtain land lies or shall be instituted against the registered owner. 14 Every title is subject to: (a) any interest that is registered against the title pursuant to this Act or any other Act or law; and (b) the exceptions, reservations and interests that are implied pursuant to sections 18 to 20, whether or not those exceptions, reservations and interests are registered against the title or mentioned on any title. [21] This Court, in at least two cases, has confirmed that the principle of indefeasibility of title has been retained by the new legislation (see CIBC Mortgages Inc. v. Saskatchewan (Registrar) of Land Titles, 2005 SKQB 470 (CanLII); [2006] W.W.R. 556; (2005), 273 Sask. R. 137 (Q.B.) and Jen-Sim Cattle Co. v. Agricultural Credit Corp. of Saskatchewan, 2006 SKQB 173 (CanLII); [2006] 11 W.W.R. 169; (2006) 277 Sask. R. 193 (Q.B.)). Therefore, have no difficulty in concluding that it would be inappropriate to reinstate the caveat because to do so would be in complete contravention of the principle of indefeasibility of title. 2. Should this Court entertain an application for declaratory relief respecting the issue of whether or not the caveat was removed improperly? [22] Counsel for the applicants argued that even if this Court was to conclude that the caveat ought not be retroactively reinstated, that it nonetheless should proceed to consider the declaratory relief aspect of the application because positive finding is necessary to access the assurance fund. [23] However, for the reasons that follow, have concluded that it would not be appropriate for this Court to embark upon an inquiry, in the context of the within application, as to whether or not the caveat was removed improperly. [24] In the event that the caveat was removed improperly, the applicants may have other avenues to pursue, including claim pursuant to Part XII of The Land Titles Act, 2000 against the assurance fund which was set up to provide compensation for losses caused by the actions of ISC. [25] Any person who sustains loss, damage or deprivation in number of specified circumstances, including errors or omissions of the Registrar, is entitled to make claim for compensation pursuant to Part XII of the Act. Any claim for compensation must first be made to the Registrar as required by subsection 89(1). If the Registrar denies compensation, the aggrieved party may bring an “action” against the Registrar (s. 91) which could result in judgment for compensation (s. 92). [26] The term “action” is not without significance. Section of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01, defines “action” as follows: 2(1) In this Act: “action” means: (a) civil proceeding commenced by statement of claim or in any other manner authorized or required by this Act or the rules of court; or (b) any other original proceeding between plaintiff and defendant. Therefore, if claim is going to be made, it ought to be made to the Registrar and, if denied, by commencing an action, which in this context would mean by the issuance of statement of claim. That would entitle the parties to the action to take advantage of the procedures available to actions commenced in this Court including production of documents, examinations for discovery, pre-trial conferences, and so on. [27] It would simply not be appropriate to permit the applicants to attempt to access the assurance fund through the mechanism of a chambers application requesting declaratory relief. The process, if the applicants choose to pursue it, would be an action under Part XII of The Land Titles Act, 2000. CONCLUSION [28] For the reasons hereinbefore stated the application is dismissed. [29] Counsel for the Registrar did not seek costs and as result, no costs will be awarded to her. However, the respondents are entitled to costs of defending this application. Zargon shall have costs fixed at $750.00. Modus, Spectrum and Triassic, who were all represented by one counsel, will also have one set of costs fixed at $750.00 (in total). J. M. D. Popescul

FIAT: A caveat registered to the applicant was removed as a result of the notice to lapse procedure. The caveat purported to be based upon a right to receive royalties from all gas, carbon and oil produced from the land. The applicant denied having ever received the notice to lapse. The applicant sought: 1) retroactive reinstatement of the caveat by order of the Court; and 2) an inquiry by the Court as to whether or not the caveat was removed improperly. The respondent companies that acquired an interest in the subject land subsequent to the caveat being removed opposed the application based, among other things, on the principle of indefeasibility of title, as did the Registrar of Land Titles. HELD: The application is dismissed with costs to the respondents. 1) Even if the caveat was removed improperly, the Court ought not to retroactively reinstate it, because to do so would defeat the fundamental principle of indefeasibility of title that has been continued in The Land Titles Act, 2000; and 2) it would not be appropriate to permit the applicants to attempt to access the assurance fund through the mechanism of a chambers application requesting declaratory relief. The process, if the applicants chose to pursue it, would be an action under Part XII of the Act.

6_2007skqb111.txt

A.D. 1997 No. 617 J.C.S. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: DENYCE BOWERING and CRAIG BOWERING RESPONDENT T.E. Turple for the petitioner B.M. Singer, Q.C. for the respondent FIAT DICKSON J. November 9, 1998 [1] Both parents want sole custody of their son Challen,born February 10, 1995. Since they separated in June of 1997,the boy has lived alternating weeks with each parent. Both now say this arrangement does not work very well. [2] I am persuaded both parents genuinely love the boyand are equally competent caregivers. Neither has demonstratedthat sole parenting offers an advantage to the boy. Both havefull-time jobs. During their working hours, the boy has been cared for by babysitters of their respective choice. The babysitters are members of their respective families and are equally competent. [3] The future plan of the mother offers the boy an enormous advantage. She plans to marry her current companion when both of them are divorced from their present spouses. She will then stay at home and be full-time parent to Challen. She is willing that the boy have generous access to his father. Such an arrangement would be far better for the boy than the present shared parenting arrangement. He would then have sense of belonging and sense of predictable routine that involves both parents. [4] Until the mother withdraws from the workplace, thepresent shared parenting arrangement shall continue. When she makes herself available for full-time child care, she will have sole custody of Challen. The father will have access onalternating weekends and for a three-hour period on oneweekday each week, provided the boy is returned to hismother`s home by the bedtime she sets for him. [5] When the mother assumes sole custody the father mustpay child support. He earns $2,210 per month ($26,520 per year). His obligation under The Federal Child SupportGuidelines [Divorce Act Regulations, SOR/97-175] is $226 permonth. The mother earns $1,454 per month ($17,448 per year). She asks the father to share the extraordinary cost of $40 permonth for the boy`s horse riding lessons. think that cost is necessary for the boy`s established routine and under the circumstances, quite reasonable. The father`s proportionalshare of this cost is $28 per month. [6] The father`s obligation shall commence on the first day of the month following the time that the mother makes herself available for full-time parenting of Challen by withdrawing from the workplace. If the parties can not agree when this event takes place, they have leave to apply for further directions. There will be no order for costs.

FIAT. Both parents sought sole custody of the one child who had been living alternate weeks with each since June 1997. HELD: 1)The present shared parenting arrangement was to continue until the mother was available for full-time child care. The father would have access on alternating weekends and for a three hour period one weekday provided the child was returned by the bedtime set by the mother. Although both parents genuinely love the child and were equally competent caregivers, neither demonstrated that sole parenting offered an advantage to him. Both had full time jobs. 2)When the mother assumes sole custody the father must pay child support of $226 per month and proportionate share of horse riding lessons ($28 per month).

3_1998canlii13409.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Direct Cash ATM Processing Partnership v. Eastside Billards and Lounge Ltd., 2008 NSSC 77 Date: (2008/03/14) Docket: SH 279588(A) Registry: Halifax Between: Direct Cash ATM Processing Partnership Direct Cash ATM Management Partnership and Eastside Billiards and Lounge Limited Respondent Judge: The Honourable Justice N. M. Scaravelli Heard: January 8, 2008, in Halifax, Nova Scotia Counsel: Jennifer Biernaskie, for the Appellants Michael Maddalena, for the Respondent and Bryna Fraser (Articled Clerk) By the Court: [1] This is an appeal from the decision of the Small Claims Court Adjudicator wherein he determined that he lacked jurisdiction to hear the action filed by the Claimants. [2] The Claimants, Direct Cash ATM Processing Partnership Direct Cash ATM Management Partnership (“Direct Cash”) is an Alberta based partnership engaged in the business of processing ATM transactions arising from privately owned or leased ATMs. [3] The Respondent, Eastside Billiards Lounge Limited (“Eastside”), Halifax based company operates billiard lounge which contains an ATM owned or leased by Eastside. [4] In early 2003, Eastside entered into contract for ATM processing services with corporation engaged in business similar to Direct Cash. That company assigned its agreement with Eastside to Direct Cash and their subsequent contractual relationship is the subject matter of this dispute. [5] In November of 2005, Direct Cash commenced an action for breach of contract against Eastside in the Alberta Court of Queen’s Bench. Eastside did not file a defence and consequently Direct Cash obtained default judgment for an amount not cited in either parties’ submissions. [6] According to submissions, Direct Cash commenced an action in the Small Claims Court of Nova Scotia for reciprocal enforcement of the Alberta judgment under the common law, and in the alternative, enforcement of the debt as contract. It appears Direct Cash’s claim was reduced from the amount of its judgment to fall within the monetary limits established by the Small Claims Court Act (the Act). As part of its defence, Eastside claimed the Alberta Court did not have jurisdiction. Documentation regarding the claim, defence and counter-claim were not available for review. [7] On January 18, 2007, the parties appeared before the Adjudicator for hearing on the issue of whether the Small Claims Court had jurisdiction to hear the claim filed by Direct Cash. The matter proceeded by way of argument. [8] The Adjudicator found that Section 9 of the Act did not provide the Court with authority to enforce an Order arising from foreign jurisdiction. The Adjudicator further decided that, although the Court had jurisdiction to proceed with the claim for breach of the agreement under contract, it was prohibited as there was no evidence “that the Alberta action was withdrawn, abandoned, struck out or transferred” pursuant to Section 15 of the Act. [9] The Adjudicator also made finding that the Defendant did not attorn to the jurisdiction of the Alberta Court. [10] The Appellant appeals the findings of the Adjudicator on the grounds that he committed errors in law in interpreting the relevant sections of the Small Claims Court Act and in his finding that Eastside did not attorn to the Alberta jurisdiction. Standard of Review [11] The parties agreed the issues on appeal are matters of law and the Standard of Review is correctness. In Brett Motor Leasing Ltd. v. Welsford (1999), 1999 CanLII 1121 (NS SC), 181 N.S.R. (2d) 76, the Court commented on the Standard of Review for Small Claims Court adjudicator at paragraph 14: One should bear in mind that the jurisdiction of this Court is confined to questions of law which must rest upon findings of fact as found by the adjudicator. do not have the authority to go outside the facts as found by the adjudicator and determine from the evidence my own findings of fact. ‘Error of law’ is not defined but precedent offers useful guidance as to where superior court will intervene to redress reversible error. Examples would include where statute has been misinterpreted; ... or where the adjudicator has failed to appreciate valid legal defence; or where there is no evidence to support the conclusions reached; or where the adjudicator has clearly misapplied the evidence in material respects thereby producing an unjust result; or where the adjudicator has failed to apply the appropriate legal principles to the proven facts. [12] Statutory authority for the recognition of judgments in foreign jurisdictions is found in the Reciprocal Enforcement of Judgments Act, R.S.N.S. 1989 c. 388. However, the legislation also preserves common law right of action. Section 11 states: Right of action of judgment creditor preserved 11. Nothing in this Act deprives judgment creditor of the right to bring proceeding on the original cause of action or for the recovery of the amount of his judgment instead of proceeding under this Act. R.S., c. 388, s. 11. [13] Section of the Small Claims Court Act provides the Court with jurisdiction to hear claims arising under contract. Section states: Jurisdiction 9. person may make claim under this Act (a) seeking monetary award in respect of matter or thing arising under contract or tort where the claim does not exceed twenty-five thousand dollars inclusive of any claim for general damages but exclusive of interest; [14] The common law enforcement of judgment obtained in another province is considered litigation arising from contract. In Ross Ritchie Ltd. v. Sydney Steele Corp., [2001] N.S.J. No. 229 (NSCA), the Court of Appeal commented at paragraph 37: In Canadian Conflict of Laws- J.G. Castel, 4th, 1997, dealing with the subject of enforcement at common law of foreign judgments in personam, the author states at p. 271, para. 153. Actions on Foreign judgments Subject to certain qualifications, judgment in personam of foreign court of competent jurisdiction is capable of recognition and enforcement in the common law provinces and territories of Canada. Apart from statute, it will not be enforced directly by execution or any other process, but will be regarded as creating debt between the parties to it, the debtor’s liability arising form an implied promise to pay the amount of the foreign judgment. The debt so created is simple contract debt and not specialty debt, and is subject to the appropriate limitation period. See also Pollier v. Laushway, [2006] N.S.J. No. 215 (NSSC). [15] Although an action on the foreign contract debt is sustainable at common law, the Adjudicator determined Section 15 of the Act prohibited the exercise of his jurisdiction as the Alberta proceedings still existed. Section 15 states: Claim before other court 15. The Court does not have jurisdiction in respect of claim where the issues in dispute are already before another court unless that proceeding is withdrawn, abandoned, struck out or transferred in accordance with Section 19. R.S., c. 430, s. 15; 1992, c. 16, s. 118. [16] I find the Adjudicator’s interpretation of Section 15 represents an error in law. Clearly the purpose of this Section is to ensure that proceedings involving the same cause of action are not simultaneously conducted before another Court in the Province, or, presumably, outside the Province. The intent is to avoid dual proceedings. [17] In the present case, there are no concurrent or parallel proceedings in Nova Scotia and Alberta. The Alberta action concluded with the issuance of the default judgment. In Moore v. Mercator Enterprises (1978), 1978 CanLII 2139 (NS SC), 90 D.L.R. (3d) 590 at paragraph 11: The English rule also prevails in Canada, at common law: final judgment, if rendered by court of competent jurisdiction and if free from fraud, is conclusive on the merits and not open to re-examination. This rule applies to foreign judgments in rem and in personam. See also Ellerbrook v. Hortico Inc., [1996] N.S.J. No. 59 (NSCA). [18] The fact that default judgment may be set aside at some time in the future, as argued by the Respondent, does not make it any less final or conclusive. Once judgment is rendered there is no proceeding that can be withdrawn, abandoned, struck out or transferred as contemplated by Section 15. [19] Obviously, this Court has concurrent jurisdiction with Small Claims Court. The issue is whether Section of the Act can be interpreted to include claims arising out of foreign judgment. [20] Section 9(5) of the Interpretation Act N.S. 1989 236 states: (5) Every enactment shall be deemed remedial and interpreted to insure the attainment of its objects by considering among other matters (a) the occasion and necessity for the enactment; (b) the circumstances existing at the time it was passed; (c) the mischief to be remedied; (d) the object to be attained; (e) the former law, including other enactments upon the same or similar subjects; (f) the consequences of particular interpretation; and (g) the history of legislation on the subject. [21] In MacLean v. MacDonald 2002 NSCA 30 (CanLII), 2002 N.S.C.A. 30 Cromwell, J.A. stated at paragraph 18: In attempting to find the correct interpretation of the statutory provisions, the court must ‘determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumption and special rules of interpretation, as well as admissible external aids,’ see Ruth Sullivan (ed.), Driedger on Construction of Statutes (3rd 1994) at 131. Having considered these matters, the court should adopt the appropriate interpretation. The appropriate interpretation is one which is plausible in the sense that it complies with the text of the Act, which is efficacious, in the sense that it promotes the legislative purpose and that is acceptable in the sense that the outcome is reasonable and just; ibid, [22] The purpose of the Small Claims Court Act is to informally and inexpensively adjudicate claims up to its monetary limits. Section states: 2. It is the intent and purpose of this Act to constitute court wherein claims up to but not exceeding the monetary jurisdiction of the court are adjudicated informally and inexpensively but in accordance with established principles of law and natural justice. The goal is to process claims efficiently and quickly. It is not Court of record and there are no pretrial procedures. [23] Clearly, the Claimant has the option of proceeding to enforce the Alberta judgment under the Reciprocal Enforcement of Judgments Act, or to proceed with its common law remedy under contract. The Claimant acknowledged that to proceed with its common law action under contract it would have the burden of proving that the Alberta Court had jurisdiction to render the judgment, either by proving the Defendant attorned to the jurisdiction or is otherwise bound by that jurisdiction. The test is one of real and substantial connection. Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC), [1990] S.C.R. 1077. Such an inquiry is question of mixed fact and law. As indicated Eastside pleads the Alberta Court did not have jurisdiction. I find the Adjudicator erred in finding that Eastside did not attorn to the jurisdiction of Alberta as there was no evidence on this issue and therefore, no basis to support this conclusion. [24] Rather than determine a claim based on a fixed amount, it is apparent an Adjudicator, in a case of this nature, would be called upon first to settle a dispute regarding the original Court’s jurisdiction, the locus of the original contract, and a factual dispute concerning attornment. [25] Taking into account the purpose of the legislation, the remedial goals, the underlying values of efficiency and access to justice, and the potential for a complex and lengthy fact finding process in this action, I find the present claim extends beyond the authority of the Small Claims Court Act. CONCLUSION [26] Accordingly, I dismiss the Appeal. [27] There will be no Order for costs under the circumstances.

The claimant brought an action in the Small Claims Court to enforce a default judgment it had been granted against the defendant in Alberta for breach of contract. The claimant attempted to proceed in Nova Scotia on the basis of reciprocal enforcement under the common law or enforcement of the debt as a contract. The adjudicator dismissed the action, finding that the Small Claims Court did not have the authority to enforce an order arising from a foreign jurisdiction and that it could not proceed with the claim for breach of the agreement under the contract as there was no evidence that the Alberta action had been withdrawn, struck or transferred out. The adjudicator also found that the defendant had not attorned to the jurisdiction of the Alberta court. The claimant appealed. Appeal dismissed; although the adjudicator's interpretation of sec. 15 of the Act and his finding that the defendant had not attorned to the jurisdiction of the Alberta court when there was no evidence before him on that issue constituted errors in law, the present claim was beyond the scope of the Small Claims Court Act, given that the adjudicator would first be called upon to settle a dispute regarding the original court's jurisdiction, the locus of the original contract and a factual dispute concerning attornment.

5_2008nssc77.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 061 Date: April 20, 2011 Information: 39695247, 39695251, 39695338, 39695347, 39847031, 39847032 Location: Saskatoon Between: Her Majesty the Queen Appearing: Ms. D.D. Black For the Crown Ms. J.D. Khan For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of name or other information that would identify someone as either young person being dealt with under the Act, or as child or young person who is victim or witness in relation to an offence alleged under the Act. DECISION Q. D. AGNEW, (a) This matter came before me pursuant to s. 672.23 of the Criminal Code, to determine the issue of the accused’s fitness to be tried for various offences. The evidence was heard over two half-days, namely the afternoons of February and April 6, 2011. (b) RCMc is accused of having committed variety of offences in December 2008, January and November 2009, as specified in the Informations listed above. The Crown presented evidence which satisfied me that it has established prima facie case against the accused regarding those allegations. (c) RCMc has previously been found unfit to stand trial with respect to the subject Informations. Accordingly, as the Crown asserts his fitness, the onus is on the Crown to prove fitness on balance of probabilities.[1] (d) The definition of “unfit to stand trial” is found in s. of the Criminal Code, where it is defined as meaning: unable on account of mental disorder to conduct defence at any stage of the proceedings before verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to: a) understand the nature or object of the proceedings, b) understand the possible consequences of the proceedings, or c) communicate with counsel. (e) RCMc is 17 years old. He has been diagnosed as having concurrently: (a) autism spectrum disorder, low functioning; (b) probable bipolar spectrum disorder; (c) attention deficit hyperactivity disorder; (d) moderate mental retardation (this diagnosis is disputed by Dr. Obikoya, who considers the degree of retardation to be “mild”); (e) epilepsy; (f) various other problems. [5] The Crown provided evidence from Dr. Olubankole Obikoya, senior psychiatrist at the Saskatchewan Hospital in North Battleford. The Crown also provided evidence from Dr. Robert John Brown, the chief psychologist at the Saskatchewan Hospital. qualified both of these witnesses as experts in their respective fields. They both testified as to their involvement with the accused, their testing and discussions with him, the conclusions they had drawn with respect to his fitness to stand trial and the reasons for those conclusions. [6] Both of them were of the view that he is not unfit to stand trial, within the meaning of the Criminal Code. They testified that he understands the nature of the trial and at least some of the possible outcomes, and the role of the various players in the trial. Furthermore, they testified that he can communicate the events of the occurrences which form the basis of the charges against him. [7] Two experts were also called on behalf of RCMc. Dr. Declan Quinn is psychiatrist specializing in child and youth psychiatry. Brian McDonald is psychologist with extensive experience in dealing with youth involved with the criminal law. qualified both of them as experts in their respective fields. They both testified as to their involvement with the accused, provided their reports and confirmed that the same still constitute their opinion, which in both cases was that RCMc is unfit to stand trial as that phrase is defined in the Criminal Code. [8] As noted, all witnesses provided their views as to whether or not the accused is fit to stand trial. allowed them to do so on the basis that making that determination is actually for me to do, not them, but that as it was the focus of the issue and the reason for their testimony, it would be difficult for them to provide their testimony without making some reference to it. Similarly, their respective views of the legal tests involved in that determination are not of particular assistance to me; allowed them to testify in that regard as it assisted me in determining the basis for their respective beliefs that RCMc is or is not fit. In reviewing their evidence, however, remain cognizant of the fact that ultimately, the conclusion of any witness as to RCMc’s fitness is not relevant to me; it is the information each witness can provide to me to enable me to determine that issue myself which is of assistance. [9] The Crown’s witnesses have had the advantage of working with RCMc at Saskatchewan Hospital over significant, and very recent, space of time. The defence witnesses each dealt with RCMc on one occasion, some time ago: in the case of Dr. Quinn, on June 25, 2010 and in the case of Mr. McDonald, on June 22, 2010, although both testified that their conclusions remain the same and indeed both were able to observe the accused in court prior to testifying. [10] There was some disagreement between the witnesses as to RCMc’s mental abilities. The IQ scores obtained for him varied between low 50s and mid-60s; to the extent that mental age could be attributed to him (a matter of disagreement as well), it was described as between four and eight, tending more toward four; although it is difficult to state with precision, he falls within the bottom .1% to 1% of the population. do not propose to review this evidence in depth, as regard the differences to be largely irrelevant for the purposes of this matter. It is clear that, whatever the details: (a) RCMc is grossly lacking in mental abilities; (b) his comprehension is very limited and basic; (c) his mental processes are those of young child; (d) none of these facts are likely to change any time soon, if indeed ever. [11] RCMc has been in the Forensic Unit of Saskatchewan Hospital since November 17, 2009. The staff therefore have extensive, and recent, experience with him and accordingly give their opinions considerable weight. [12] RCMc is on an extensive course of medication at Saskatchewan Hospital. Notwithstanding the medications, the behavioural programs, the experienced personnel and the great deal of time they have had to spend with him, RCMc continues to present severe problems to the staff there. During waking hours he is almost constantly subjected to physical restraints, but even so has managed to injure number of staff. [13] Staff at Saskatchewan Hospital attempted to educate RCMc regarding the court process and players prior to this hearing, in an attempt to “make” him fit to stand trial. At the end of that training, they report that RCMc was able to indicate who the lawyers were and what their roles were, the role of the judge, the charges against him and possibility of going to jail. They also indicated, however, that RCMc is susceptible to suggestion. Dr. Brown testified that intellectually, RCMc is “a parrot”. Mr. McDonald, for the defence, testified that he had been able to get RCMc to admit to having done things that he clearly had not in fact done. [14] In addition to the evidence of the witnesses, have had the advantage of observing RCMc on the two different afternoons which the fitness hearing occupied, for periods totaling several hours. Unfortunately, the record will in no way reflect certain significant events which occurred in the courtroom. [15] RCMc was in custody throughout and, therefore behind glass in the prisoner’s dock. In the courtroom in which the hearing was held, it is space roughly 15 or 20 feet long and about four feet wide, with bench down most of its length. [16] On February 7, 2011, the first hearing date, RCMc began the hearing sitting quietly, holding stuffed toy which had apparently been provided to him by the Deputy Sheriffs. To begin with, although he would occasionally shift or stand, he remained reasonably passive. As time went on, he began to move more, and began to interact more and more with the deputy or deputies who were in the box with him. In the latter portion of that half day, there began to be more and more contact between RCMc and the deputies, and by the end, two deputies were attempting to restrain RCMc while he was being very aggressive physically including, it appeared, attempting to bite at least one of them. [17] Over the course of that first afternoon, while RCMc would occasionally make an interjection or some kind of gesture or other signal that he was aware that something was happening in the courtroom, those became less frequent as the afternoon wore on. Certainly for much of the last half of the afternoon, it appeared to me that RCMc was not only not paying any attention to the proceedings, but was actually incapable of so doing. [18] During the afternoon of April 6, 2011 RCMc’s behaviour was somewhat different in that there were no physical altercations with the deputies, and RCMc was physically less restless. Similar to the previous session, however, his behaviour included pacing, and becoming agitated and having to be calmed by the deputy. Also as previously, he would occasionally shout out in response to something stated by witness, or seize upon some seemingly random word and act it out. These interjections appeared random, but they were always connected with something that had just been said in the courtroom, indicating that at least occasionally RCMc had noticed something of what was going on. As the afternoon went on he again became worse, not to the point of violence but to the point of pacing, talking and growling. After the close of evidence, and with the consent of counsel, excused him from the courtroom. Argument was therefore conducted in his absence. [19] From observing him throughout the hearing, have very little confidence that he was able to follow any aspect of the proceeding, other than occasionally taking notice when his name was might be mentioned or when something or someone briefly caught his attention. [20] There is of course no legal requirement that an accused pay attention to his trial, and were there no doubt about RCMc’s mental capabilities or functioning, this would not be an issue. If an accused chooses not to participate in their trial, that is their choice. The conclusion which have drawn from the evidence, and from observing RCMc through the course of this hearing, is that he has no choice in the matter. As result of his mental situation, at this time, for the past significant period and for the foreseeable future he appears to be incapable of paying attention to his court proceeding or participating in it in any way. [21] Through the course of each afternoon’s hearing, breaks were taken. did not notice significant change in RCMc’s demeanour, attention or focus after his return from those breaks. mention this in particular because if it were otherwise, it might be possible to organize his trial so that frequent breaks could be taken to enable him to regain focus. My observations of him during the hearing, however, suggest that this would not assist. Although he was better at the beginning of each afternoon, do not have any information as to how long break would be required to regain this status: the two months between hearings was apparently enough (even assuming it was the break itself that caused this “reset” in RCMc); ten or 15 minutes during the hearing was apparently not. [22] The evidence of Drs. Obikoya and Brown indicates to me that, under quiet and controlled circumstances in one-on-one conversations with them, RCMc is able to maintain sufficient focus to answer satisfactorily their questions with respect to his fitness to stand trial. It may be that understanding, short time prior to trial, both the nature of the trial and its possible consequences is sufficient for those two branches of the fitness test. In this regard, should mention that at the end of the defence’s case RCMc’s counsel wished to question him. In light of the evidence heard to that point, and my own observations of him, did not have RCMc sworn or otherwise discuss the necessity of him telling the truth. am satisfied that his answers were not duplicitous or knowingly false, however. When his counsel asked him who she was, he replied that she was the judge. When she asked him what my role was, he was unable to answer. This was repeated with respect to the prosecutor. He appeared to have limited insight into why he was in court. [23] The applicable legal standard to be applied to the test for fitness to stand trial is “limited cognitive capacity”. This test was first annunciated by the Ontario Court of Appeal in R. v. Taylor[2], and was subsequently adopted by the Supreme Court of Canada in R. v. Whittle[3]. This is the standard against which the accused’s abilities are measured with respect to each of the branches of the unfitness test. Thus, to be fit to stand trial, the accused must have at least limited cognitive capacity regarding the nature of the proceedings and their possible consequences, and regarding his or her ability to communicate with counsel. [24] I am satisfied that RCMc meets this standard with respect to the first two branches of the test: that is, because with coaching, in a calm and controlled environment, and at least part of the time, he has at least a limited understanding of the nature of the proceedings and their possible consequences, RCMc meets the first two tests of fitness to stand trial, namely (1) understanding the nature of the proceedings, and (2) understanding the possible consequences. I am also satisfied that under such conditions, RCMc is able to communicate his version of the events surrounding each of the allegations made against him. He would presumably be able to provide that information to counsel, although recognize that actually obtaining that information from him might well be difficult and time-consuming. am also cognizant of the problem, identified by both psychologists, of the possibility of RCMc giving false information, admitting to something he had not done or otherwise complicating his counsel’s role. [25] How the “limited cognitive capacity” standard is to be applied to the third branch of the fitness test, the ability to communicate with counsel, is matter of some dispute. There are two major streams of thought, represented by recent decisions respectively of the Ontario and Saskatchewan Courts of Appeal. [26] The Ontario Court of Appeal recently reviewed fitness for trial in the case of R. v. Morrissey[4]. Mr. Morrissey was alleged to have shot and killed his girlfriend and then turned the gun on himself, firing single shot to the middle of his forehead. Mr. Morrissey suffered severe brain injury, but did not die. He argued that he was unfit to stand trial, on the basis that he was incompetent to testify. The evidence indicated that Mr. Morrissey, as result of the brain injury, likely had memory loss with respect to the events surrounding the shootings. It was not clear what he might remember, or the accuracy of anything which he purported to recall. [27] The Ontario Court of Appeal rejected Mr. Morrissey’s submission that testimonial competence is pre-condition to fitness to stand trial. In detailed analysis of the policy rationale for the requirements for fitness, the Court cited R. v. Taylor, supra, at para. 50: In order to ensure that the process of determining guilt is as accurate as possible, that the accused can participate in the proceedings or assist counsel in his/her defence, that the dignity of the trial process is maintained, and that, if necessary, the determination of fit sentence is made possible, the accused must have sufficient mental fitness to participate in the proceedings in meaningful way. The Ontario Court of Appeal concluded (para. 36) that “meaningful presence and meaningful participation at the trial, therefore, are the touchstones of the inquiry into fitness.” [28] The Ontario Court of Appeal found that Mr. Morrissey’s inability to testify as to the events of the alleged shooting did not make him unfit to stand trial, as he would still be able to participate meaningfully in the trial. [29] The precise opposite is the case with respect to RCMc. It appears that he has at least some recollection of the events. However, there is not any possibility that he would be able to participate in his trial in a meaningful way. Observing him with his stuffed toys in the prisoner’s dock, attempting to take things from the deputy, eventually pacing and running back and forth and ultimately attacking the deputies, it was very clear that the accused was only peripherally aware of the proceedings, and even that only for brief portions of the hearing. [30] The other stream of thought is represented by the Saskatchewan Court of Appeal’s decision in R. v. Jobb[5]. The Saskatchewan Court of Appeal reviewed the history of the “limited cognitive capacity” test for determining fitness. In Jobb, the Saskatchewan Court of Appeal concluded that the limited cognitive capacity test does not require that an accused be able to make rational decisions beneficial to him, or the “analytic capacity” test as it was referred to in Taylor[6]. [31] The Court of Appeal in Jobb addressed the issue before me in the following terms: The focus of concern for the trial judge was the extent to which Mr. Jobb’s cognitive disability might limit his ability to give ongoing instructions to counsel in relation to and in response to the trial proceedings this concern does not accord with limited cognitive capacity test. As determined in Jobb, court’s assessment of an accused’s ability to communicate with and instruct counsel is limited to an inquiry into whether an accused can recount to their counsel the necessary facts relating to the offence in such way that counsel can then properly present defence (paras. 38 and 39). [32] The clearest direction possible, with respect to the situation faced by RCMc, is found in paragraph 43 of Jobb: that Mr. Jobb be able to participate in his defence in “a meaningful way or assist his counsel during the course of trial” is not, with respect, an accurate application of the limited cognitive capacity test, which requires only that he be able to recount the facts of the offences with which he is charged to his counsel. [33] That definition clearly does not sit easily beside the situation of Mr. Morrissey, as faced by the Ontario Court of Appeal, where Mr. Morrissey appeared to have cognitive faculties but, because of his brain injury, no ability to recount the facts of the offences. It seems that Mr. Morrissey, with intact mental faculties but hole in his memory, would fail to meet the test as annunciated by the Saskatchewan Court of Appeal in Jobb and would accordingly be found not fit to stand trial. On the other hand it appears that RCMc, with a memory but virtually no ability to participate in the court proceeding in any meaningful way, meets the limited cognitive capacity test as enunciated in Jobb [34] As RCMc meets the limited cognitive capacity test for the three branches of the test, I find him fit to stand trial. [35] The matter before me is simply a fitness hearing: it is not a trial as such. Defences and Charter issues which might be put forward at trial thus do not arise. therefore make no comment as to whether or not the accused would be in position to make full answer and defence, whether or not trial might therefore entail difficulties with sections and 11(d) of the Charter, or whether there are any defences that his mental state might afford RCMc. Q.D. Agnew, [1] See s. 672.32(2) [2]1992 CanLII 7412 (ON CA), 1992 77 C.C.C. (3d) 551 [1992] O.J. No. 2394 (Ont. C.A.) [3] 1994 CanLII 55 (SCC), [1994] [4] 2007 ONCA 770 (CanLII), 2007 Ont. C.A. 770, 87 O.R. (3d) 481, 227 C.C.C. (3d) 1, 54 C.R. (6th) 313, 163 C.R.R. (2nd) 312, 230 O.A.C. 145, leave to appeal denied: 231 C.C.C. (3d) vi [5] 2008 SKCA 156 (CanLII), 314 Sask. R. 236 [2009] W.W.R. 193, 239 C.C.C. (3d) 29.

The accused was subject to a hearing to determine whether he was fit to stand trial on charges under the Criminal Code. The accused was grossly lacking in mental abilities, had limited and basic comprehension, had the mental capacity of a young child and these facts were not likely to change anytime soon. The accused had extreme difficulty paying attention to the court proceedings and appeared incapable of doing so. He played with toys in the prisoner's box, paced around and pestered the deputy sheriff sitting with him for much of the proceeding.HELD: The accused was incapable of paying attention to the court proceeding or participating in a meaningful way because of his mental disability. The accused said that his lawyer was the judge, could not answer when asked what the judge's role was and he had limited insight into why he was in Court. The accused met the portion of the limited cognitive capacity test which requires an understanding of the nature of the proceedings and their possible consequences and the accused is capable of communicating his version of the events surrounding the allegations, but there is no possibility he could participate in a meaningful way in the trial. According to R. v. Jobb, the limited cognitive capacity test does not require that an accused be able to make rational decisions beneficial to himself, the Court's inquiry is limited to whether an accused can recount to their counsel the necessary facts of the offence to present a defence. The accused in this case was found fit to stand trial because he had a memory of what happened during the alleged offence despite having virtually no ability to participate in the proceeding.

c_2011skpc61.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 207 Date: 2013 05 30 Docket: F.L.D. No. 98 of 2013 Judicial Centre: Prince Albert, Family Law Division BETWEEN: JEFFREY SHAWN McKERRACHER and BONNIE LYNN MORGAN Counsel: H. Cotton for the petitioner C. M. Ozirny for the respondent FIAT MAHER J. May 30, 2013 [1] Further to the hearing of this matter on May 7, 2013, the issue remaining to be determined is whether the children are to be, on an interim basis, relocated from La Ronge to live with the respondent at Melville, Saskatchewan. [2] The parties commenced common-law relationship in February, 2000. There are two children of the relationship, namely: Justin Morgan McKerracher born May 31, 2001 and Sean Lucas McKerracher born September 26, 2004. [3] The parties separated in April of 2010, while living in La Ronge, Saskatchewan. The initial parenting arrangement was that the children resided with the respondent and with the petitioner having access on the weekends. The petitioner’s uncontradicted evidence is that on January 1, 2011, the parents agreed to verbal co-parenting arrangement. The arrangement that was in place until March 31, 2012, was that the children would change their residence between the parents on each Monday after school. The children have primarily resided in La Ronge or the Air Ronge District of Saskatchewan. They have always attended the Pre-Cambrian Elementary School in La Ronge where Justin is in grade six and Sean in grade three. [4] The evidence discloses that the respondent had sold her home and business in La Ronge by March of 2013. The petitioner says that in March of 2013 he asked the respondent if she was planning to move out of the La Ronge District but received no direct answer. He was advised by the respondent on April 1, 2013, that he would not be receiving the children for their scheduled parenting week because she and the children had relocated to Melville, Saskatchewan. The respondent further advised that she was enrolling the children in school at Melville. RELEVANT CASE LAW [5] There have been numerous decisions of the courts on the issue of interim parenting of children. These principles were set out by Laing J. in Guenther v. Guenther, (1999) 1999 CanLII 12554 (SK QB), 181 Sask. R. 83, [1999] S.J. No. 120 (QL) (Q.B.) where he made the following comments on the maintenance of the status quo on interim custody: It appears from the foregoing case law, it constitutes an error in principle, and reversible error in law to vary interim custody arrangements pending trial in the absence of evidence of risk to the child. The foregoing case law indicates that once an interim custody arrangement has been in place for some time, whether de facto, by court order, or by agreement of the parties, the non-primary care parent should not apply on an interim basis to vary the arrangement (except where risk to the child exists), but proceed to final order. In this province, that means obtaining pre-trial date for pre-trial conference, and if the matter is not resolved at that stage, proceed to trial where the Court will determine what is in the best interests of the child. [6] The Saskatchewan Court of Appeal recently dealt with interim custody in the decision of Mantyka v. Dueck, 2012 SKCA 109 (CanLII), 399 Sask.R. 303 where Richards J.A. commented on the relocation of children on an interim basis when he said the following at para. 31 The case law also provides that significant caution is necessary when deciding whether custodial parent should be allowed to move with child on an interim basis, i.e. before trial of the relevant issues. This is so for two reasons. The first is because an interim change of location can all too easily create new "normal" and thereby effectively go some distance toward determining the final result of the proceedings. Ryan-Froslie J. explained the problem as follows in Benson v. Benson, 2011 SKQB 457 (CanLII), 388 Sask. R. 89 at para. 18: The difficulties Court faces in determining mobility issues on interim applications has been the subject of considerable judicial comment. The evidence presented on interim applications is in the form of affidavits. Often those affidavits are not extensive enough to enable court to thoroughly examine the best interests of child. That evidence is often contradictory and the Court has no ability to test its authenticity or determine issues of credibility. Allowing child to move on an interim application uproots the child from its community and makes return to that community unlikely on hearing of the final application because of the consequent disruption to the life of the child. In other words, allowing such move often amounts to final determination of the issue. It is for those reasons that Courts have long held that as general rule moves should not be allowed on interim applications (See: Guenther v. Guenther, [(1999), 1999 CanLII 12554 (SK QB), 181 Sask.R. 83 (Q.B.)] at para. 5). 32 The second reason for approaching interim relocations with caution is that the record before the court normally consists only of affidavit evidence which, by its nature, is often incomplete or somewhat limited in scope. Moreover, such evidence is often contradictory or inconsistent. It is thus both difficult and unwise to make important decisions on the basis of record with these sorts of frailties. See: Nieman v. Bull, 1999 SKQB 204 (CanLII) at para. 7; Shiplack v. Shiplack, 2008 SKQB 254 (CanLII), 317 Sask. R. 223 at para. 19. ... 35 That said, family law culture of "move first and ask questions later" is self-evidently not something that can be either approved or encouraged. Neither parents nor their counsel should see relocations of children as means of obtaining tactical advantages in custody or access disputes. Among other things, that is why there is distinct reluctance to give any credit to custodial parent who moves unilaterally, knowing that the move will be controversial, and then attempts to resist an application to reverse the move by arguing that he or she has quit job, sold house or otherwise made decisions which will be difficult to roll back. Problems of this sort are generally seen as being self-imposed. See for example: Ofukany v. Ofukany, supra at paras. and 7; Brandt v. Dean, 2010 SKQB 401 (CanLII), 363 Sask.R. 293 at para. [7] am satisfied on the evidence that the parties had verbal co-parenting arrangement with the children rotating weekly between the parents. find that this arrangement was in place from January of 2011 until April 1, 2013, when the respondent unilaterally relocated the children from La Ronge, Saskatchewan to Melville, Saskatchewan. am satisfied that for some twenty-seven months the parenting arrangement with the children was weekly rotation co-parenting arrangement. I find that this co-parenting was a de facto co-parenting arrangement between the parties. I am also satisfied that there is no risk for the children in the care of either the petitioner or the respondent. CONCLUSION [8] I find on the evidence that the parties are to be joint custodial parents for the two boys. I find the preservation of the status quo is in the best interest of the two boys. Therefore, the two boys are to reside in La Ronge or Air Ronge, Saskatchewan and attend school there while residing with the petitioner. [9] I make the following interim order: 1. That the children shall have their primary residence with the petitioner in Air Ronge, Saskatchewan; 2. The respondent shall be entitled to interim access every second weekend, commencing Friday, May 31, 2013 to Sunday, June 2, 2013. The petitioner shall transport the children to an agreed upon location at Melfort, Saskatchewan by 7:00 p.m. on Friday and the respondent shall pick the children up at that location. The children are to be returned to Melfort by the respondent for pick up by the petitioner on Sunday at 6:00 p.m. at an agreed location; 3. Such access arrangement shall continue every second weekend until further order of the court; 4. In the event that access is on long weekend, the children are to be returned to the petitioner at Melfort, Saskatchewan by the respondent by 6:00 p.m. on the Monday; 5. The petitioner shall make appropriate arrangements for the supervision of the children so that they are supervised prior to their attendance at school and after school if he is unable to personally provide such supervision. The petitioner shall provide in writing details of the supervision arrangement he has in place to the respondent; 6. The respondent shall be entitled to generous telephone access to the children which shall include at least three phone calls per week; 7. In the event that the respondent was to relocate back to the La Ronge District to live, she may apply to vary the terms of this order regarding parenting; 8. order that Voices of the Children’s Report be prepared for the child, Justin, who will be 12 on May 31, 2013. [10] Summer access it is important that there be meaningful summer access for the children with both parents. This issue was not specifically addressed, however am satisfied that it is in the best interests of the children that they spend an equal amount of time with each of their parents in July and August. If the parties are unable to agree to summer access schedule, this matter may be brought back before me and will make determination of an appropriate summer access schedule. [11] The petitioner has been successful in this application. have considered the fact that the respondent unilaterally relocated the children resulting in the petitioner having to bring two applications for the return of the children to their home in La Ronge, Saskatchewan. assess costs against the respondent in the amount of $1500 payable within ten (10) days from the date of this judgment. J. R. D. MAHER

The issue to be determined was whether the parties' children should remain in La Ronge or be relocated to live with the respondent in Melville on an interim basis. The parties were in a common law relationship and had two children, aged 9 and 12. After separation, the children resided with their mother, the respondent, in La Ronge and they had access with the petitioner on the weekends. In January 2011, the parties agreed to a weekly co-parenting arrangement. In April 2013 the petitioner was advised by the respondent that she and the children had moved to Melville. Up until that point the child had always resided in the La Ronge area and attended only one school. HELD: The Court found the co-parenting arrangement to be the de facto parenting arrangement and that there was no risk to the children with either parent. The Court ordered that the parties were joint custodians of the children and that preservation of the status quo was in their best interests. The Court ordered that the children primarily reside in La Ronge with the petitioner and attend school there. The Court also ordered specified access for the respondent.

4_2013skqb207.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 116 Date: 2014-10-31 Between: Docket: CACV2544 Saskatchewan College of Psychologists Applicant (Respondent) and Daniel Sydiaha Respondent (Appellant) Before: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Karen Prisciak, QC for the Applicant (Respondent) Jay Watson for the Respondent (Appellant) Application: From: 2014 SKQB 112 (CanLII) Heard: October 31, 2014 Disposition: Application dismissed (orally) Written Reasons: November 14, 2014 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Jackson J.A. [1] This application concerns the jurisdiction of this Court to hear an appeal from decision of the Court of Queen’s Bench when the latter exercises jurisdiction under statute that is silent as to the right to appeal to this Court. The particular issue is whether ss. 7(2) and 7(3) of The Court of Appeal Act, 2000, SS 2000, C-42.1 permit member of the Saskatchewan College of Psychologists to appeal decision of the Court of Queen’s Bench to this Court when The Psychologists Act, 1997, SS 1997, P-36.01 is silent on the question, providing as it does for right of appeal by the member to the Court of Queen’s Bench only. [2] Dr. Daniel Sydiaha is non-practising psychologist and member of the Saskatchewan College of Psychologists. On April 15, 2014, the Court of Queen’s Bench dismissed his appeal from decision of the council of the Saskatchewan College of Psychologists finding him guilty of professional misconduct for failing to identify his non-practising status (see Sydiaha Saskatchewan College of Psychologists, 2014 SKQB 112 (CanLII)). Shortly thereafter, he filed notice of appeal in this Court. [3] The only appeal provisions in The Psychologists Act are as follows: Interpretation In this Act: (f) “court” means the Court of Queen’s Bench Appeal to court 37 member whose conduct is the subject of an order of the council pursuant to section 36 may appeal that order to judge of the court within 30 days after the order of the council, and section 36 applies with any necessary modification. Reinstatement 40(5) Where, on an application for reinstatement, the council refuses to reinstate the person as member, the applicant may, within 30 days after the date of the order, appeal the order of the council to judge of the court, and the judge may allow or disallow the appeal. [4] On the other hand, The Court of Appeal Act, 2000 provides that “an appeal lies” to this Court from “any judgment, order, decree, verdict or finding” of the Court of Queen’s Bench or judge of that Court unless an enactment “confers only limited right of appeal” (ss. 2, 7(2)(a) and 7(3)). [5] The precise provisions of The Court of Appeal Act, 2000 concerning the right of appeal to this Court and its jurisdiction to hear an appeal read as follows: Interpretation In this Act and the rules of court made pursuant to this Act, except where otherwise provided “court” means the Court of Appeal for Saskatchewan; “decision” includes any judgment, order, decree, verdict or finding; Right of appeal 7(1) In this section and section 9, “enactment” means: (a) an Act; (b) an Act of the Parliament of Canada; or (c) regulation made pursuant to an Act or an Act of the Parliament of Canada; but does not include this Act. (2) Subject to subsection (3) and section 8, an appeal lies to the court from decision: (a) of the Court of Queen’s Bench or judge of that court; and (b) of any other court or tribunal where right of appeal to the court is conferred by an enactment. (3) If an enactment provides that there is no appeal from decision mentioned in subsection (2) or confers only limited right of appeal, that enactment prevails.[1] Appellate jurisdiction 10 The court has appellate jurisdiction in civil and criminal matters where an appeal lies to the court, with any original jurisdiction that is necessary or incidental to the hearing and determination of an appeal. (Emphasis added) [6] Asserting that The Court of Appeal Act, 2000 does not enlarge the rights of appeal contained in The Psychologists Act, the College applied for an order quashing Dr. Sydiaha’s appeal. [7] On the day the College’s application was heard, we dismissed the application from the Bench with brief reasons to follow. These are those reasons. [8] Prior to the enactment of The Court of Appeal Act, 2000, it was necessary for this Court to consider questions of jurisdiction from complex and ambiguous legislative base. This Court had to determine whether it had jurisdiction to hear an appeal by construing s. of The Court of Appeal Act, RSS 1978, C-42, repealed, and s. 33 of The Interpretation Act, RSS 1978, I-11, repealed. [9] Section of The Court of Appeal Act of 1978, and its predecessors dating back to The Court of Appeal Act, SS 1915, 9, grounded its jurisdiction in that of the High Court of Justice or the Court of Appeals in England as of January 1, 1898, “where not specially changed, altered or provided for” by any enactment of the legislature: Nature and extent of jurisdiction The court shall have all the jurisdiction and powers possessed by the Supreme Court of Saskatchewan en banc immediately prior to the first day of March, 1918, and shall have jurisdiction and power, subject to the rules of court, to hear and determine all applications for new trials, all questions or issues of law, all questions or points reserved for the opinion of the court, all appeals or motions in the nature of appeals respecting any judgment, order or decision of any judge of the Court of Queen’s Bench, or respecting any judgment or decision of any judge of court of inferior jurisdiction, sitting in court, where an appeal is given by any Act, all petitions, and all other motions, matters or things whatsoever which might lawfully be brought before any divisional court of the High Court of Justice or the Court of Appeals in England on the first day of January, 1898, where not specially changed, altered or provided for by this or any other Act of Saskatchewan. (The Court of Appeal Act of 1978) [10] Section 33 of The Interpretation Act of 1978, and its predecessors, dating back to The Interpretation Act, SS 1959, 12, only tangentially concern the question of when right of appeal lies from decision of the judge of the Court of Queen’s Bench to this Court. It declares when judge of the Court of Queen’s Bench is not sitting as persona designata so as to narrow the circumstances when right of appeal will not exist. Section 33 (of 1978) provides as follows: Judge or officer not persona designata 33. Notwithstanding section 3, where by any Act judicial or quasi-judicial powers are given to judge or an officer of any court, whether individually or as member of class, the judge or officer shall, in the absence of express provision to the contrary, be deemed to exercise the powers in his capacity as judge or officer of the court, as if the court itself had jurisdiction in respect thereof, and not as persona designata. [11] Without more direct statement as to when right of appeal would lie to this Court, it was necessary to consider on case-by-case basis first, whether the Court had jurisdiction derived from complex matrix of sources and second, whether the legislature had enlarged or diminished that jurisdiction. Notwithstanding the indirect language contained in s. of The Court of Appeal Act of 1978 and s. 33 of The Interpretation Act of 1978, Sherstobitoff J.A., speaking for the Court, declared in Borrowman Wickens (1986), 1986 CanLII 3658 (SK CA), 82 Sask 295 (CA): [6] The issue as to right of appeal and the jurisdiction of this court to hear the appeal, in the absence of specific provision in the Local Government Elections Act for such an appeal, must be taken to have been conclusively settled by the decision of this court in Attorney General of Canada v. Lees, 1977 CanLII 1453 (SK CA), [1977] W.W.R. 505, and the other decisions of this court referred to therein. The right of appeal, as well as the jurisdiction of this court to hear the appeal, is found in s. of the Court of Appeal Act, R.S.S. 1978, c. C-42. (Emphasis added) [12] Similarly, in Attorney General of Canada Lees, 1977 CanLII 1453 (SK CA), [1977] WWR 505 (Sask CA), the Court was called upon to determine whether right of appeal exists from decision of the Court of Queen’s Bench under The Recovery of Possession of Land Act, RSS 1965, 122. That Act provided for right of appeal to judge of the Court of Queen’s Bench, but was silent about whether further appeal lies to the Court of Appeal. This Court held that s. of The Court of Appeal Act of 1978 conferred general right of appeal from decision of the Court of Queen’s Bench and that this right of appeal applied in the circumstances of that case. [13] In other decisions of this Court, the combination of s. of The Court of Appeal Act of 1978 and s. 33 of The Interpretation Act of 1978, and consideration of all relevant principles of statutory interpretation, resulted in determination that this Court had no jurisdiction to hear an appeal from the Court of Queen’s Bench. (See, for example, Swanson Saskatchewan Registered Nurses’ Association (1992), 1992 CanLII 8309 (SK CA), 100 Sask 81 (CA).) [14] When the legislature enacted s. of The Court of Appeal Act, 2000, it ushered in new era of clarity with respect to this Court’s jurisdiction to hear appeals from the Court of Queen’s Bench. Cameron J.A., speaking for the Court in Valley Beef Co-operative Ltd. Farm Credit Corp., 2002 SKCA 100 (CanLII), 223 Sask 236, stated: [50] These, then, are the fundamental components of all judicial decision-making, and the judges of the Court of Queen’s Bench, as highly trained and competent as they are as superior court judges, may on occasion fail in relation to one or more of them, or fail on the whole to pronounce such judgment or make such order as the quelling of the controversy calls for. This is why the legislature created the right of appeal found in subsection 7(2)(a), when subject to no legislative limit: To provide parties to proceedings in the Court of Queen’s Bench with the most comprehensive and effective means of redress possible in relation to such failures. That is the object of the right, the attainment of which we are bound to strive to achieve when construing and interpreting the provisions of the Act concerning the right, bearing in mind the right of appeal is subject to no limit except such as may be justifiably implied in keeping with the canons of construction. (Emphasis added) [15] In the present application, the College has asked this Court to interpret s. of The Court of Appeal Act, 2000 in such manner that s. 7(2) would have no effect, and indeed, would overturn such decisions as Borrowman. According to the College’s submissions, the starting point for the analysis is s. 7(3). Relying on s. 7(3), the College argued that The Psychologists Act “confers only limited right of appeal” because it is silent with respect to further right of appeal to this Court, i.e., the absence of right of appeal to this Court means that the enactment confers limited right of appeal on the member. In that regard, the College relies on Huerto Saskatchewan (Minister of Health) (1995), 1995 CanLII 3917 (SK CA), 128 Sask 208 (CA) and Swanson, which is referred to in Huerto. In further support of its position, the College provided list of statutes dealing with the regulation of the professions, which provides either right of appeal to the Court of Queen’s Bench only or an explicit right of appeal to this Court from decision of the Queen’s Bench. [16] Since this application presents question of statutory interpretation, it is useful to refer to the analytical framework provided by the Supreme Court of Canada to determine the intention of the legislature. According to that framework, court interpreting legislation must read the words of the statute in their entire context, in their grammatical and ordinary sense harmoniously within the scheme of the statute, its objective and the intention of the legislature: Rizzo Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] SCR 27 at 41 (quoting E. Driedger, Construction of Statutes, 2d ed (Toronto: Butterworths, 1983) at 87). [17] Faced with determining the exact limits of appellate jurisdiction in legislation like The Court of Appeal Act, 2000, legislature has two choices. The legislature could provide that the Court of Appeal has no jurisdiction unless it is specifically granted to the Court by an enactment, or the legislature could spell out the general jurisdiction of the Court, subject to an expression of contrary legislative intention in any enactment. Whatever route is chosen, the goal must be clarity so as to avoid, as much as possible, litigation that is centered not on the merits of the dispute but on whether this Court has the jurisdiction to resolve it. [18] In this application, this Court’s task is to determine which legislative model the legislature intended when it enacted The Court of Appeal Act, 2000. In this Court’s view, having regard for what preceded The Court of Appeal Act, 2000 and its provisions, the legislature has chosen the second model: the legislature has established general right of appeal unless there is an expression of legislative will to the contrary. When enacting legislation, it should be possible to rely on The Court of Appeal Act, 2000 without having to repeat this Court’s appellate jurisdiction in every statute that confers original or appellate jurisdiction on the Court of Queen’s Bench. Only in the circumstance where the legislature intends to exclude or limit right of appeal should it need to turn its mind to the jurisdiction of this Court. [19] In our view, it is an error to construe s. by asking first whether The Psychologists Act “confers only limited right of appeal” within the meaning of s. 7(3). Section 7(2) begins with the words “subject to subsection (3),” but it is necessary to consider the general provision before considering what is taken from it. [20] Section 7(2)(a) states that “an appeal lies to the court from a decision … of the Court of Queen’s Bench or a judge of that court.” Reading these words grammatically and giving them their ordinary sense, they indicate that whenever the legislature confers jurisdiction on the Court of Queen’s Bench, and is silent with respect to an appeal from that Court, an appeal lies from it. This meaning is supported by the objectives and purposes of The Court of Appeal Act, 2000, which are to establish the jurisdiction, powers and duties of the Court of Appeal and its judges. The meaning is also supported by consideration of what s. replaced: general, albeit ambiguous, right of appeal conferred by s. of The Court of Appeal Act of 1978 and its predecessors. [21] Section 7(2) is subject to s. 7(3). Section 7(3) provides that the legislature can take away the right of appeal conferred in s. 7(2) in an enactment, but that enactment must “provide that there is no right of appeal” or “confer only limited right of appeal.” The College submits that the lack of an express right of appeal to this Court in The Psychologists Act means that it is an enactment that confers only limited right of appeal. [22] Clearly, the legislature can convey intent without express words, but if this Court held that the phrase “confers only limited right of appeal” is satisfied when no right of appeal is provided in the other enactment, s. 7(2)(a) would serve no purpose. right of appeal would have to be found in every other enactment that confers jurisdiction on the Court of Queen’s Bench. [23] In order to properly interpret s. 7, it is necessary to read ss. 7(2) and 7(3) harmoniously together so as to give each provision meaning. Having regard for the nature of general appellate legislation like The Court of Appeal Act, 2000, the proper meaning of s. 7(2)(a) is that it creates the general jurisdiction of the Court: an appeal lies to the Court from decision of the Court of Queen’s Bench. Section 7(3) is nothing more than further expression of what would be the law whether the subsection were there or not: the general right of appeal to the Court is subject to an expression of legislative will to the contrary in any other enactment, but it requires more than silence in the other enactment to take away the general right. [24] With this interpretation of s. 7, it is of little relevance that many of the professional statutes are silent on the question of right of appeal to this Court. When the legislature enacted The Court of Appeal Act, 2000, it drew no distinction between professional statutes and others. If this Court were to draw distinction when the legislature has not, it would fly in the face of what we have found to be the clear legislative intent proclaimed by s. 7(2). [25] Given this interpretation, it is not strictly necessary to consider Swanson[2] and Huerto other than to note that they are distinguishable. In Huerto, s. 49.21(4) of The Saskatchewan Medical Care Insurance Act, RSS 1978, S-29 provided that “[t]here is no appeal from the decision of judge pursuant to this section.” Thus, it concerned an express statement, which would fall into the first part of s. 7(3). [26] We note as well that following this Court’s decision in Swanson, the legislature enacted The Interpretation Act, 1993, SS 1993, c. I-11.1, which added the following: Powers to judges 44(1) Where judicial or quasi-judicial powers are given to judge or officer of court, the judge or officer in exercising the powers does so in his or her official capacity and representing his or her court. (2) Without restricting subsection (1), where an appeal lies from person, board, commission or other body to court or judge, an appeal lies from the decision of the court or judge as in the case of any other proceeding in that court or in the court of which the judge is member. (Emphasis added) [27] Section 44(1) of The Interpretation Act, 1993 is reenactment of s. 33 of The Interpretation Act of 1978. Section 44(2) of The Interpretation Act, 1993, however, is new provision. It provides support for the proposition that where Court of Queen’s Bench judge is acting pursuant to right of appeal to that Court, further appeal lies to this Court. This provision is repeated in The Interpretation Act, 1995, SS 1995, I-11.1 in the exact same terms. [28] In conclusion, s. 7(2)(a) of The Court of Appeal Act, 2000 is clear expression of legislative intent establishing the general rule that an appeal lies to the Court of Appeal from decision of the Court of Queen’s Bench or judge of that Court. Silence alone is not an expression of legislative intent as to whether further appeal lies to this Court from decision of the Court of Queen’s Bench. That is the general rule. Section 7(2)(a) is, of course, subject to the need to obtain leave with respect to interlocutory decisions and to the two exceptions contained in s. 7(3): (i) when another enactment provides that there is no appeal from decision of the Court of Queen’s Bench; and (ii) when another enactment confers only limited right of appeal. In both of these circumstances, the other enactment prevails. [29] Neither of those last two circumstances pertains to the application before us. The Psychologists Act does not state that there is no appeal from a decision of the Court of Queen’s Bench. note that the College does not have right to appeal from the decision of the council to the Court of Queen’s Bench, but that does not limit the member’s right of appeal from that Court to this one. [30] For these reasons, the College’s application was dismissed when heard. The question of costs is left for the panel of the Court hearing Dr. Sydiaha’s appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 14th day of November, 2014. “Jackson J.A.” Jackson J.A. concur. “Ottenbreit J.A.” Ottenbreit J.A. concur. “Herauf J.A.” Herauf J.A. [1] Section of The Court of Appeal Act, 2000, which is referred to in s. 7(2), concerns the need to obtain leave for “interlocutory appeals” and is not relevant to the resolution of the issues in this application. [2] Note that the legislature amended The Registered Nurses Act in The Registered Nurses Amendment Act, 1993, SS 1993, 37, 4, by granting specific right to the discipline body and to the nurses to appeal to the Court of Appeal.

HELD: The court dismissed the application. Section 7(2) indicates that whenever the legislature confers jurisdiction on the Court of Queen’s Bench, and is silent with respect to an appeal from that Court, an appeal lies from it. The Psychologists Act does not state that there is no appeal from a decision of the Court of Queen’s Bench.

d_2014skca116.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Bishop v. Bishop, 2005 NSSC 220 Date: 20050808 Docket: 1204-003658 Registry: Kentville Between: Harry R. Bishop v. Paulette L. Bishop Respondent Judge: The Honourable Justice Arthur J. LeBlanc Heard: March 14, 2005, in Kentville, Nova Scotia Final Written Submissions: April 18, 2005 Counsel: Harry R. Bishop, self for the petitioner Stephen A. Mattson, Q.C., for the respondent By the Court: [1] Harry Bishop and Paulette Bishop met in 1990 and began cohabiting the same year. They were married on May 17, 1991 and separated on June 29, 2003. They have not resumed cohabitation. Both parties were previously married. There are no children of the marriage. [2] am satisfied that the parties have lived separate and apart for more than one year and that there is no possibility of reconciliation. All other jurisdictional requirements have been met. Therefore grant divorce under s. 8(2)(a) of the Divorce Act. [3] Ms. Bishop is receiving $1,600.00 in monthly spousal support pursuant to an order of Justice Stewart issued July 13, 2004. No additional interim orders have been issued. [4] The issues are the division of matrimonial assets and liabilities, whether Ms. Bishop is entitled to spousal support, and, if so, in what quantum. EVIDENCE Evidence of the parties [5] Mr. Bishop, the petitioner, is corporal in the Canadian Armed Forces. He has been member since 1977 and was in the second year of three year contract at the time of trial. He is stationed at Greenwood as an Airborne Electronic Sensor Operator aboard Aurora aircraft. Ms. Bishop, the respondent, is high school graduate. She was 48 years of age at the time of trial. When the parties met and began cohabiting, she was cleaner at CFB Greenwood. Before that she had worked at nursing home and hospital and as general worker at motels. The parties met in early 1990 and started to cohabit later the same year. Mr. Bishop said they began cohabiting in May, but accept Ms. Bishop’s statement that it was actually February 1990 when they moved in together. They lived in the vicinity of the base in rented premises. In 2000 they bought house in Middleton, which they sold in 2003. [6] The parties agree that initially they had happy relationship, which deteriorated due to Mr. Bishop’s consumption of alcohol and (according to Mr. Bishop) Ms. Bishop’s abuse of drugs. Mr. Bishop said he was not aware of her dependency on narcotics when they married. Mr. Bishop stated that Ms. Bishop demanded that he buy drugs for her. He claimed that they were spending upwards of $600.00 each month on narcotics near the end of their cohabitation. Mr. Bishop said he did not want Ms. Bishop’s drug habit to become public issue because it might have negative impact on his career. Consequently, he purchased marijuana for her. Ms. Bishop denied that she had strong addiction to narcotics, although she did some drugs, as she said Mr. Bishop did, but not excessively, as he claimed. She stated that she can no longer afford as much marijuana, although she has smoked marijuana and handmade cigarettes since the separation. [7] Mr. Bishop said he did not consume drugs as there was zero tolerance drug policy for members of the flight team. Ms. Bishop said substantial amount of Mr. Bishop’s income was directed to the purchase of alcohol. Mr. Bishop acknowledged that shortly after they started to cohabit, he became addicted to alcohol for several years until he got his consumption under control. He admitted that this addiction was serious enough to require medical treatment, and that on occasion he would drink to the point that he became unconscious. He agreed that he attempted suicide, resulting in his hospitalization. He claimed that this was caused not by his drinking (as Ms. Bishop stated), but because he was dissatisfied with the safety of the aircraft. He was subsequently diagnosed with depression and was grounded from flying for two years. [8] Ms. Bishop’s employment terminated shortly after the parties began cohabiting due to change in contractor. She received employment insurance for period and returned to work part-time as cleaner at the credit union. Ms. Bishop testified that shortly after the start of cohabitation, Mr. Bishop told her that he did not want her to work as cleaner, as it would not look good with his being member of the flight team. She claimed that he told her on one occasion that if she continued to work as cleaner, he would leave her. Therefore, she said, she decided not to work as cleaner, despite the resulting financial difficulties. Mr. Bishop claimed he never told her not to return to work but to do so once work became available. He said he was prepared to support her until she obtained alternate employment. [9] Laura Elena Beck is sister of Ms. Bishop. She testified that Mr. Bishop told Ms. Bishop, in her presence, that once they married Ms. Bishop would not have to work. She could not recall specifically if anyone else was present or the circumstances, but she said she was certain that Mr. Bishop made the statement. [10] Ms. Bishop stated that she is unable to return to work because of health problems, including irritable bowel syndrome, depression, obsessive compulsive disorder, sore back, and osteoporosis. She said she was diagnosed with obsessive compulsive disorder in 1992. Around the same time, there were marital problems due to Mr. Bishop’s drinking. Ms. Bishop agreed that this caused arguments, which resulted in her being depressed. Due to depression, she ceased doing house work, which duties were assumed by Mr. Bishop. She denied that “doing marijuana” prevented her from taking on gainful employment or homemaking. She reported her medical problems including loss of sleep, lack of eating and frequent crying episodes to Dr. Yafai, her doctor, shortly after the separation. She reported that she had suicidal ideation. Ms. Bishop claimed that she is unable to do any of the employment she previously performed. She also claimed that she has fractured vertebrae. She also said she would be unable to do heavy lifting. She could not lift patients or trays in nursing home to which are requirements for personal care worker. She said she also has difficulty with concentration and poor memory. [11] Over time, as Ms. Bishop became depressed and gradually lost interest in maintaining the home, Mr. Bishop took over the maintenance of the home, including such tasks as cleaning, laundry and the outside chores. He claimed that Ms. Bishop is capable of returning to some form of employment, either as cleaner or working in senior citizens or nursing home complex. He suggested that Ms. Bishop has been attending clubs and bars and that there is no substance to her claim that she is depressed or physically unable to perform any employment. He claimed that her medical condition did not prevent her from performing household duties, which she has performed since their separation. Mr. Bishop claimed that she is unwilling to work and that she does not want to assume her responsibilities. He said she did nothing productive in the latter years of their marriage. [12] Mr. Bishop said Ms. Bishop withdrew approximately $1,700.00 from their joint bank account within weeks following their separation. He denied consenting to this withdrawal. He agreed that at the time she had no other source of money except for small amount of change. He said he knew Ms. Bishop needed social assistance shortly after they separated. For his own part, Mr. Bishop withdrew about $8,400.00 from his RRSP, leaving balance of $400.00, within month or two after the separation. He maintained that another $4,000.00 was withdrawn shortly before the separation which was applied to matrimonial debts. [13] Mr. Bishop agreed that during the marriage the parties received significant amounts of money from Mabel Sabean, Ms. Bishop’s mother. She originally advanced $13,000.00 to consolidate some debts and to pay off loan taken out by Mr. Bishop to pay settlement to his first wife. He and Ms. Bishop received additional amounts for down payment on house and to purchase furnace for the matrimonial home. He said all the advances were to both himself and Ms. Bishop. He also stated that in 1993 Mrs. Sabean gave Ms. Bishop 1993 Sunbird automobile as gift, which was used by both parties. Mr. Bishop said the final advance from Mrs. Sabean, of $6,000.00, was subject to an IOU, which he claimed was means by which Mrs. Sabean would shield herself from more demands for money. He stated that the IOU required him to pay her the amount that both parties agreed was owing. There is no evidence to substantiate what amount was intended to be included in the IOU. Mr. Bishop did not repay any of the amounts advanced by Ms. Sabean. He maintained that the money advanced by Mrs. Sabean was, for the most part, applied to matrimonial debts. total of about $23,000.00 was received. [14] Ms. Bishop said she had borrowed significant amounts of money from her mother during the time the parties cohabited. She claimed that these were loans made to Mr. Bishop to cover existing loans or to make capital purchases, such as home or furnace. She said some of these advances were loans made specifically to him rather than to both of them, and others were gifts made by her mother to them as couple. She acknowledged that neither of them signed any documents obligating them to repay the money except the IOU signed by Mr. Bishop at about the time he received the $6,000.00 from Mrs. Sabean. [15] Mr. Bishop earns $4,782.05 per month, about $57,300.00 annually. He is paid bi-weekly. He receives special allowance, which he said is included in his salary. Mr. Bishop is presently under three-year contract and said he may be released from the Armed Forces early because of his inability to perform his tasks. Mr. Bishop did not provide any documentation or evidence to support this claim. He has established common law relationship with Ms. Elaine Snow and her two children live with them. The oldest boy is paying $25.00 per month towards his accommodation. Ms. Snow receives $300.00 per month in child support. She was unemployed at the time of trial. [16] Mr. Bishop’s pension has value of $140,239.00 for the period of cohabitation. His pension entitlement was established at $384,556.18 for the period February 10, 1977 to June 29, 2003, his entire period of service with the Armed Forces to the date of separation. [17] Mr. Bishop said the monthly expenses shown in his statement of financial information reflect the costs of Ms. Snow and her two children. He stated that some of his living expenses have risen since he began living with Ms. Snow and her children. He said it was more expensive to live in barracks than living in an apartment and claimed that his heating bill has gone up. Although his statement of financial information includes motor vehicle costs, he agreed that he is using Ms. Snow’s vehicle. He said he had to buy furniture because Ms. Bishop retained all of the parties’ furniture. His evidence was that his statement of financial information reflects approximately $650.00 more in expenses that he is actually spending. [18] In reviewing her expenses, Ms. Bishop stated that she needs motor vehicle to access the hospital and her physician. Her motor vehicle needs significant repairs and is expensive to operate. As such, she said, expenditures of $400.00 per month for vehicle repairs, maintenance and gas are necessary. She requires special diet for irritable bowel syndrome. She takes prescription drugs, some of which are provided by her family physician as samples. Her drug expenses are covered under Mr. Bishop’s drug plan but this will cease once the divorce is granted. have reviewed Ms. Bishop’s monthly budget and other than the car expenses and yard expenses, they are reasonable. The transportation expenses will have to be reduced and she is not responsible for yard expenses. Evidence of Dr. Yafai [19] Dr. Yafai is general practitioner and member of the Nova Scotia Medical Society. He has been Ms. Bishop’s physician for more than 10 years. He has treated her for multiple conditions, including irritable bowel syndrome, severe depression and obsessive compulsive disorder. He said Ms. Bishop is also suffering from bone density issue, which he believes is caused, in part, by lack of proper diet. [20] Dr. Yafai claims that he first diagnosed Mrs. Bishop with depression and anxiety in 1995, and later with obsessive-compulsive disorder. Dr. Yafai stated that Ms. Bishop’s depressive state has worsened since the separation. He made the following diagnosis relating to her complaint of depression and anxiety: (a) Crying (b) Sleep deprived; (c) Appetite loss; (d) Memory loss. [21] Dr. Yafai reported that Ms. Bishop has suffered weight loss and pain in her joints. He thought that she has poor prognosis for recovery, and thinks her condition is chronic. He said the irritable bowel syndrome is the main problem. It causes Ms. Bishop to have severe abdominal cramps, which are crippling. He said Ms. Bishop’s irritable bowel is severe and difficult to treat. He stated that stress can exacerbate this condition. strict dietary program consisting of high fibre is helpful. Dr Yafai was unaware of Ms. Bishop’s marijuana use during the marriage. [22] Dr. Yafai supports Ms. Bishop’s application for Canada Pension Plan disability benefits, claiming that she cannot do even part-time work. He agrees that many of her symptoms relating to depression and anxiety are self reported and said he did not do any objective testing. He agreed that with an appropriate diet, Ms. Bishop’s irritable bowel syndrome may improve, but said it would take five or six months with monitoring to see any positive results. He was unwilling to speculate, because Ms. Bishop had this condition prior to her separation and there has been no improvement since. He had not referred Mrs. Bishop to dietician. [23] Ms. Bishop submitted number of reports, containing opinions, prepared by various medical professionals which declined to consider because the authors did not testify at the hearing. consider them to be hearsay. Mrs. Bishop did not establish basis for their admissibility other than that it was costly to have the various experts attend the trial. am satisfied, however, that Dr. Yafai could rely on such opinions as basis for the treatment he offered Ms. Bishop. Other Witnesses [24] Andrew Sabean is cousin of Ms. Bishop. He has known Mr. Bishop for 12 years. He said he saw Ms. Bishop do housecleaning and was present when she was socializing. He had seen her using narcotics. [25] Cathy Robar has been friend of Ms. Bishop for 30 years and has known Mr. Bishop for about 12 years. She helped Ms. Bishop move to new apartment after the separation and had visited her since then. She said she had seen her clean the house and cook meals. She has been with Ms. Bishop at the Tophat Bar and the Kingston Legion several times since the separation. She said Ms. Bishop’s eating habits were very poor. She had not observed her using narcotics. [26] Jackie Sabean is related to Ms. Bishop and has known Mr. Bishop for about 13 years. He said he saw Ms. Bishop once since the separation, at the Legion. He said he had seen Ms. Bishop use narcotics but not Mr. Bishop. [27] Betty Swinamer is cousin and friend of Ms. Bishop. Ms. Bishop lived with her between October and December 2004. She said she did receive any money from Ms. Bishop. She did not observe Ms. Bishop or Mr. Bishop using narcotics. Since Ms. Bishop has been on her own, Ms. Swinamer said she did not observe her doing any housecleaning. She said Ms Bishop appears to be very stressed and has lost great deal of weight since the separation. They have gone out together socializing couple of times each week. [28] Charles Phinney stated that he and Ms. Bishop are friends. They attend the same church. He was not certain whether they met at dance. He said he observed her using marijuana at her home. [29] Laura Elena Beck, Ms. Bishop’s sister, said she did not know whether Ms. Bishop goes to clubs, but said she has gone to the Legion. MATRIMONIAL ASSETS [30] The net proceeds from the disposition of the matrimonial home in Middleton, $7,936.00, are being held in trust, less $188.33 for garbage removal and related expenses incurred by Mr. Bishop and paid from the trust funds. Ms. Bishop retained the furnishings and the motor vehicle, which has value of $1,200.00. do not have valuation for the furnishings. understand from the evidence that they are typical furnishings and appliances, to which impute value of $2,500.00. [31] Mr. Bishop stated that he withdrew the largest portion of the RRSP and applied it to matrimonial debts. He claimed that of the RRSP value of approximately $12,700.00, he withdrew about $4,000.00 before the separation and $8,255.00 after it, leaving balance of around $400.00. He said he is indebted to the Government of Canada for about $5,000.00 in income taxes resulting from these withdrawals. Mr. Bishop reduced the value of the RRSP matrimonial asset without allocating any of this amount to Ms. Bishop. [32] The $1,700.00 taken by Ms. Bishop from the joint account after the parties separated represents an expenditure for car repairs. have excluded this amount and the $4,000.00 withdrawn from the RRSP, as both amounts were applied to matrimonial debts. [33] The debts owing by the parties are the following: On Separation February 5, 2005 Visa $27,482.59 $28,103.09 Sears Canada 1,600.00 1,693.88 Credit Union 4,946.00 5,000.00 [34] These are matrimonial debts. They were incurred during the cohabitation. Mr. Bishop has attempted to maintain his financial position and to prevent the creditors from taking any precipitous action. He said he does not want to make an assignment in bankruptcy as he does not want to lose his employment. He has made arrangements with the Bank of Nova Scotia to delay the payment of an outstanding loan until the case is settled. Since the separation Mr. Bishop has paid interest on debts to the Royal Bank, Visa, Sears and the Credit Union. He has not paid any of the principal. He has arranged for the creditors to hold off taking any legal proceedings until matters are resolved. He agreed that on previous occasions he had stated that he was intending to file for bankruptcy. However, at trial, he said taking such step would negatively impact his position. [35] Ms. Bishop, who is joint obligant, claims she would be named in any legal proceedings to respond to the claims, particularly if Mr. Bishop files for bankruptcy. Ms. Bishop was not asked how she would deal with such an eventuality nor did she state whether she too would file for bankruptcy. [36] It is appropriate to hold Mr. Bishop responsible for the payment of the matrimonial debts. He has ability to earn income in the future. He claims that an assignment in bankruptcy might impact his career, and he therefore needs to pay these debts. direct that the funds held in the trust account be paid rateably to the three creditors and ask Mr. Mattson to contact the law firm to effect such payments. Should Mr. Bishop fail to pay all of the debts, and should Ms. Bishop be required to pay any of the debts, she would be entitled to apply for an increase in any spousal support order. [37] As to the IOU signed by Mr. Bishop in favour of Mrs. Sabean, dated May 2, 2000, although it purports to obligate Mr. Bishop to pay all amounts due and owing to Mrs Sabean, find that it is unenforceable because it is missing important terms. The IOU provided that Mr. Bishop promises to pay back to Mrs. Sabean “the amount agreed upon by both parties, that is owing”. As some of the key terms to make this binding obligation are missing, find there is no legal obligation. The IOU does not make Mr. Bishop liable, apart from any moral obligation he might voluntarily assume. refer to Walker v. Walker (1990), 92 N.S.R.(2d) 127 and Webb v. Webb [1994] N.S.J. 543. Mr. Bishop’s Pension [38] Mr. Bishop’s pension was not divided with his first spouse. According to his evidence, rather than divide the pension he made cash payment of $20,000.00. Mr Bishop did not provide the Court with documentation to confirm this arrangement, but accept his evidence on this point. [39] In Morash v. Morash (2004), 2004 NSCA 20 (CanLII), 221 N.S.R. (2d) 115 (C.A.), Bateman J.A. stated that under the Matrimonial Property Act pension of one spouse is matrimonial asset. Absent an application for unequal division under s. 13, pension entitlements should therefore be divided equally. Section 4, of course, defines “matrimonial assets” to include “all ... real and personal property acquired by either or both spouses before of during the marriage”, with certain exceptions. The burden is upon Mr. Bishop to establish that it would be unfair or unconscionable to divide the pension equally, pursuant to s. 13, which provides, in part: Factors Considered on Division 13 Upon an application pursuant to Section 12, the court may make division of matrimonial assets that is not equal or may make division of property that is not matrimonial asset, where the court is satisfied that the division of matrimonial assets in equal shares would be unfair or unconscionable taking into account the following factors: (a) the unreasonable impoverishment by either spouse of the matrimonial assets; (b) the amount of the debts and liabilities of each spouse and the circumstances in which they were incurred; ... (d) the length of time that the spouses have cohabited with each other during their marriage; (e) the date and manner of acquisition of the assets; ... (I) the contribution made by each spouse to the marriage and to the welfare of the family, including any contribution made as homemaker or parent; (j) whether the value of the assets substantially appreciated during the marriage; ... (l) the value to either spouse of any pension or other benefit which, by reason of the termination of the marriage relationship, that party will lose the chance of acquiring; (m) all taxation consequences of the division of matrimonial assets.... [40] Davison J. considered the circumstances for unequal division in Prince v. Prince (1995) 144 N.S.R. (2d) (S.C.) (affirmed (1997) 1997 CanLII 1209 (NS CA), 163 N.S.R. (2d) 28 (C.A.)), where he referred to Hardwood v. Thomas (1981), 45 N.S.R. (2d) 414 (S.C.A.D.): ¶43 The leading case in the province dealing with this section is Hardwood v. Thomas ... where MacKeigan, C.J.N.S. stated at 417: Equal division of the matrimonial assets, an entitlement proclaimed by the preamble to the Act and prescribed by s. 12 should normally be refused only where the spouse claiming larger share produces strong evidence showing that in all the circumstances equal division would be clearly unfair and unconscionable on broad view of all relevant factors. That initial decision is whether, broadly speaking, equality would be clearly unfair not whether on precise balancing of credits and debits of factors largely imponderable some unequal division of assets could be justified. Only when the judge in his discretion concludes that equal division would be unfair is he called upon to determine exactly what unequal division might be made. The legislation encourages equality. The Hardwood case recognizes this in establishing the test. It refers to the necessity of "strong evidence" that an equal division would be "clearly unfair and unconscionable". [41] In Morash, supra, Bateman J.A. stated: ¶23 The presumed equal division of matrimonial assets recognizes marriage as partnership with each spouse contributing in different ways. measuring of the respective contributions of the parties to the acquisition of the matrimonial assets, save in unusual circumstances, is to be avoided. Matrimonial assets may be divided other than equally, only where there is convincing evidence that an equal division would be unfair or unconscionable. [Young v. Young (2003), 2003 NSCA 63 (CanLII), 216 N.S.R. (2d) 94 (C.A.)]. In applying s. 13, the question is not whether an unequal division would be fair or fairer, but whether the usual equal division dictated by the Matrimonial Property Act, would be unfair or unconscionable. "... [t]he issue of fairness is not at large, allowing judge to pick the outcome that he prefers from among various alternative dispositions, all of which may be arguably fair." (S.B.M. v. N.M. (2003), 2003 BCCA 300 (CanLII), 14 B.C.L.R. (4th) 90; [2003] B.C.J. No. 1142, (Q.L.)(C.A.) per Donald, J.A. at para 23). Absent factual context supporting unequal division, the court is not free to exclude from division assets acquired by one party prior to marriage.... ¶33 Since the decision of the Supreme Court of Canada in [Clarke v. Clarke, 1990 CanLII 86 (SCC), [1990] S.C.R. 795] ... this Court has consistently held that pension credits earned before and during the marriage (subject to valuation date issues) are matrimonial asset and subject to equal division, but for the operation of s. 13 of the Matrimonial Property Act.... Accordingly, Ms. Morash is entitled to an equal share of the pension credits earned prior to the marriage. [42] Justice Bateman determined that there was no basis for an unequal division. The husband had made four years of contributions prior to cohabitation. In Morash, however, there was no distinct application under s.13. [43] Mr. Bishop refers to several cases where pension contributions made prior to cohabitation were subject to unequal division. considered this issue in Falkenham v. Falkenham (2003), 2003 NSSC 163 (CanLII), 215 N.S.R. (2d) 247. The parties had been married in 1984 and divorced in 2003, and had two children. The wife had not worked great deal outside the matrimonial home after the birth of the children. The husband’s pension contributions extended six years before the parties’ cohabitation. included all of the pre-cohabitation contributions as matrimonial assets. [44] In Connolly v. Connolly (1999), 1999 CanLII 1172 (NS CA), 172 N.S.R. (2d) 382 (C.A.) the wife received half the value of the pension benefits earned during cohabitation. The husband had contributed to the pension for 33 years, 16 of which were prior to cohabitation and seven after separation. During the marriage, the wife cashed her pension and applied the proceeds to the purchase of the matrimonial home. The trial judge excluded pre–marital pension contributions because the wife had been burden on the marriage due to her alcoholism. Dismissing the appeal, Roscoe, J.A. stated: 15 After reviewing the three cases referred to above, [Dort v. Dort (1994), 1994 CanLII 4316 (NS SC), 130 N.S.R. (2d) 108; Adie v. Adie (1994), 1994 CanLII 4290 (NS SC), 134 N.S.R. (2d) 60; and Frost v. Frost (1996), 1996 CanLII 5392 (NS SC), 154 N.S.R. (2d) 341] there does appear to be trend emerging in the treatment of pre‑marriage pension contributions in certain types of cases, perhaps reflected in the significance given to certain factors, noted by Justice Stewart in Dort: ... It is not "short" marriage but it is important to note at what point in their lives they chose to marry. It was second marriage for the wife and also for the husband, who has adult children from his first marriage of seventeen years. They were mature when they married. No children were born of the parties ... 16 These three cases share several features with the case under appeal. In all these instances, the marriages were second marriages for both spouses. The marriages and/or periods of cohabitation were of short to medium length, five years in Frost, ten years in Dort and this case, and 15 years in Adie. In none of these cases were there any children born to the parties during the relationship. In Dort and Adie the entire pension contributions were made prior to cohabitation, and in Frost all but six months were pre‑marriage contributions. In Dort, Adie and Frost the trial judges relied, either partially or entirely, on the date and manner of acquisition of the asset, (s. 13(e)), as the rationale for an unequal division and awarding 100 percent of the pension to the contributor. That is perfectly consistent with the decision under appeal where 100 percent of the pre‑cohabitation contributions were not shared with the other spouse. 17 As noted in Adie, supra, at page 64, another consideration for this disposition of the pension asset, in some of the cases, is that the portion of the pension not divided with the present spouse was not accumulated by the diversion of family income: ... The result is that it was acquired exclusively by him before he had even met his present wife, and it was acquired by him without any contribution by the present Mrs. Adie whatsoever. She did not have relationship with Mr. Adie during the contributing phase of several years so as to be able to point to reduction in availability of income resulting in standard of living during the contributing years which reduction was in essence being set aside for future security enjoyment. 18 After considering these cases, it does not appear that the result in this case is inconsistent with other recent cases of similar circumstances, or that it was an error in law or in fact for the trial judge here to rely on s. 13 (d) and (e) in dealing with the pension division issue on the facts of this marriage. [45] In Urquhart v. Urquhart (1998), 1998 CanLII 5667 (NS SC), 169 N.S.R. (2d) 134 (S.C.) the parties cohabitated for seven years. The wife took substantially greater assets into the marriage than did the husband: her net worth had been in excess of $300,000.00, while Mr. Urquhart had negative net worth. As to pension division, Goodfellow J. stated that it would be unfair and unconscionable to award either spouse an interest in that portion of the investments earned exclusively by the party before the entry into the relatively short marriage (para. 27). [46] am satisfied that an unequal division of the pension is justified. Mr. Bishop contributed to the pension for 13 years prior to the parties cohabiting, and for similar length of time during cohabitation. This was medium-length marriage, second marriage for both parties, and there were no children. The circumstances here are unlike those in Morash, supra, Falkenham, supra and Rutherford v. Rutherford (2004), 2004 NSSC 148 (CanLII), 225 N.S.R. (2d) 293 (S.C.), where the parties had cohabited for most of the period while the pension entitlement was being earned, except for four to six years. In this case half the pension contribution period pre-dated cohabitation. This is not to say that in all cases where there is lengthy pre-cohabitation contribution period there will be an unequal division. But in the circumstances am satisfied that an equal division of this asset would be unfair or unconscionable. Ms. Bishop is not entitled to half of the pension, but to lesser share, whose determination requires consideration of the factors set out in s. 13. [47] The conduct of both parties unreasonably impoverished the matrimonial assets. Ms. Bishop smoked marijuana in significant quantities and Mr. Bishop was addicted to alcohol for an extended period. Resorting to s. 13(a) as justification for an unequal division would be inappropriate because it would place the blame entirely on Ms. Bishop for the impoverishment. This factor applies equally to Mr. and Mrs. Bishop and does not assist Mr. Bishop. [48] As to the date and manner of acquisition of the pension (s. 13(e)), significant portion of the contributions was made prior to cohabitation, which find commenced in February 1990. acknowledge that significant growth or increase in the pension entitlement occurred during the period of cohabitation. have no accounting of the value of the pension as of the date the parties commenced cohabitation. [49] Ms. Bishop did not leave her employment to take care of any children. Nor did she leave her employment to advance Mr. Bishop’s career; while conclude that he did ask her not to work as cleaner at the base, this does not mean he did not want her to work at all. With respect to s. 13(I), find that initially, Ms. Bishop contributed to the welfare of the family by taking care of the property and home. However, the evidence established that Mr. Bishop did most of the work in the home during the latter part of the marriage on account of Ms. Bishop’s depression. [50] have taken into account that Mr. Bishop benefited significantly from the payments received from Ms. Sabean, which no doubt reduced the amount of matrimonial debts, and that he is responsible for all of the matrimonial debts. [51] have already indicated the value of the pension for the period February 1990 to June 2003. This calculation fails to address the value of the pension between February 1977 to February 1990. Ms. Bishop will lose the benefit of future increases in the value of Mr. Bishop’s pension. [52] I award 35% of the pension entitlement to Ms. Bishop and 65% to Mr. Bishop, from February 1977 to the date of separation of June 29, 2003. [53] Ms. Bishop is 48 years of age (at the time of trial) and her expenses are in the range of $3,000.00 per month. There is an interim spousal support order of $1,600.00 per month. She seeks continuation of spousal support for an indefinite period, claiming she is unable to return to work on account of her medical problems. conclude that with professional psychiatric or psychological assistance, she could deal with her depression and anxiety issues, and that the obsessive-compulsive disorder, in itself, does not prevent her from returning to work. am satisfied, however, that the other major illnesses and disabilities, particularly irritable bowel syndrome, limit her ability to return to employment. find as fact that Ms. Bishop is unable to return to employment at this time. [54] While Mr. Bishop argued that many of her symptoms of depression and anxiety are self-reported, Dr. Yafai’s evidence was that cramps related to irritable bowel syndrome would prevent Ms. Bishop from maintaining regular work schedule. She also complains of sore back, which restricts her ability to lift, thus excluding her previous employment as cleaner or in nursing homes (where she would likely be required to lift patients). But for the irritable bowel syndrome, she could take up sedentary work. It is clear from Dr. Yafai’s evidence that any treatment would only be effective over an extended period of time. It is also clear from the doctor’s evidence that Ms. Bishop suffered from this illness for considerable time during the marriage, without any successful relief or cure. [55] The Divorce Act refers to the objectives and relevant considerations in making spousal support order at s. 15.2: Spousal support order 15.2 (1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse. Terms and conditions (3) The court may make an order under subsection (1) or an interim order under subsection (2) for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just. (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including (a) the length of time the spouses cohabited; (b) the functions performed by each spouse during cohabitation; and ©) any order, agreement or arrangement relating to support of either spouse. Spousal misconduct (5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of spouse in relation to the marriage. Objectives of spousal support order (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; ©) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self‑sufficiency of each spouse within reasonable period of time. [56] As to the question of what, if any, entitlement to support exists, find the Supreme Court of Canada decision in Bracklow v. Bracklow, 1999 CanLII 715 (SCC), [1999] S.C.R. 420, helpful in this case. McLachlin J. (as she then was), writing for the Court, described the approach to be followed by trial judge in determining spousal support question. She referred to Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813: 35 Moge ... sets out the method to be followed in determining support dispute. The starting point is the objectives which the Divorce Act stipulates the support order should serve: (1) recognition of economic advantage or disadvantage arising from the marriage or its breakdown; (2) apportionment of the financial burden of child care; (3) relief of economic hardship arising from the breakdown of the marriage, and (4) promotion of the economic self‑sufficiency of the spouses: s. 15.2(6). No single objective is paramount; all must be borne in mind. The objectives reflect the diverse dynamics of the many unique marital relationships. 36 Against the background of these objectives the court must consider the factors set out in s. 15.2(4) of the Divorce Act. Generally, the court must look at the "condition, means, needs and other circumstances of each spouse". This balancing includes, but is not limited to, the length of cohabitation, the functions each spouse performed, and any order, agreement or arrangement relating to support. Depending on the circumstances, some factors may loom larger than others. In cases where the extent of the economic loss can be determined, compensatory factors may be paramount. On the other hand, "in cases where it is not possible to determine the extent of the economic loss of disadvantaged spouse the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party": Ross v. Ross (1995), 1995 CanLII 6228 (NB CA), 168 N.B.R. (2d) 147 (C.A.), at p. 156, per Bastarache J.A. (as he then was). There is no hard and fast rule. The judge must look at all the factors in the light of the stipulated objectives of support, and exercise his or her discretion in manner that equitably alleviates the adverse consequences of the marriage breakdown. [57] In Bracklow, Justice McLachlin set out three conceptual grounds for entitlement to spousal support: compensatory, contractual and non-compensatory. She emphasized that compensation is not the only basis for support, pointing out that “by directing that the judge consider factors like need and ability to pay ... [the Divorce Act] left in place the possibility of non-compensatory, non-contractual support” (para. 18). She went on to discuss the “mutual obligation theory” which “postulates each of the parties to the marriage agreeing, as independent individuals, to marriage and all that it entails ‑‑ including the potential obligation of mutual support” (para. 30). The mutual obligation model was contrasted with the self-explanatory “clean-break” model (para. 27). She summarized: 43 In summary, nothing in the ... Divorce Act suggests that the only foundations for spousal support are compensatory. Indeed, find it difficult to confine the words of the statutes to this model. It is true that in 1986 the Divorce Act was amended to place greater emphasis on compensation. This represented shift away "to some degree" from the "means and needs" approach of the 1968 Act: Payne on Divorce ... at p. 267. But while the focus of the Act may have shifted or broadened, it retains the older idea that spouses may have an obligation to meet or contribute to the needs of their former partners where they have the capacity to pay, even in the absence of contractual or compensatory foundation for the obligation. Need alone may be enough. More broadly, the legislation can be seen as sensitive compromise of the two competing philosophies of marriage, marriage breakdown, and spousal support. [58] am particularly guided by the comment in Bracklow, citing Ross, that “where it is not possible to determine the extent of the economic loss of disadvantaged spouse the court will consider need and standard of living as the primary criteria together with the ability to pay of the other party” (para. 36). The evidence does not suggest contractual relationship between the parties. Neither does there appear to be compensatory basis for support. The parties had no children, and thus Ms. Bishop did not forgo advancement in order to be the primary caregiver. Generally, there is no evidence to establish that her standard of living was negatively affected by the marriage. Additionally, there is no evidence to establish whether her financial condition is better or worse than it was when the parties began cohabitation. [59] On the other hand, Ms. Bishop is not presently employable. She has applied for CPP disability benefits but had no response by the time of trial. She was working when she and Mr. Bishop met and began cohabiting. am satisfied that she stopped working as cleaner at the Base at his direction. For the rest of the marriage, she did not work outside the home, and contributed little to maintaining the home. In this she somewhat resembles the appellant wife in Bracklow. [60] It should be noted that the illness need not be causally related to the marriage. As Justice McLachlin said in Bracklow: 48 To permit the award of support to spouse disabled by illness is but to acknowledge the goal of equitably dealing with the economic consequences of marital breakdown that this Court in Moge, supra, recognized as lying at the heart of the Divorce Act. It also may well accord, in my belief, with society's sense of what is just. The Report of the Scottish Law Commission, Family Law: Report on Aliment and Financial Provision (1981), at pp. 111‑12, thoughtful analysis of the rationale and policy considerations of spousal support and illness, states: Financial provision on divorce is not simply matter of abstract principle. It is essential that any system should be acceptable to public opinion and it is clear from the comments we have received that many people would find it hard to accept system which cut off, say, an elderly or disabled spouse with no more than three‑year allowance after divorce, no matter how wealthy the other party might be. Divorce ends the marriage. Yet in some circumstances the law may require that healthy party continue to support disabled party, absent contractual or compensatory entitlement. Justice and considerations of fairness may demand no less. [61] In Bracklow the Court found basis for support based on the length of cohabitation (about seven years), the hardship imposed upon the appellant by the breakdown of the marriage, the appellant’s probable need and the respondent’s ability to pay. As in Bracklow, find that the breakdown of the marriage left Ms. Bishop in state of economic hardship, as contemplated by s. 15.2(6)(c) of the Divorce Act. After separation, her financial situation deteriorated. Initially she resorted to social assistance, until she was awarded interim support. On the other hand, Mr. Bishop has secure employment and it appears that he can remain at this employment until retirement age. He has entered relationship with Ms. Snow. The parties’ marriage was mid-length one, with period of cohabitation of about 13 years. [62] In the circumstances, am satisfied that Ms. Bishop is entitled to spousal support. The next question is the quantum and duration of support. In Bracklow, Justice McLachlin stated that the same considerations that inform the consideration of entitlement are to be considered on the issue of quantum (para. 50). Commenting on the parties’ proposed formulas, she said, at para. ... The quantum awarded, in the sense of both amount and duration, will vary with the circumstances and the practical and policy considerations affecting particular cases. Limited means of the supporting spouse may dictate reduction. So may obligations arising from new relationships in so far as they have an impact on means. Factors within the marriage itself may affect the quantum of non‑compensatory support obligation. For example, it may be difficult to make case for full obligation and expectation of mutual support in very short marriage. (Section 15.2(4)(a) of the Divorce Act requires the court to consider the length of time the parties cohabited.) Finally, subject to judicial discretion, the parties by contract or conduct may enhance, diminish or negate the obligation of mutual support. To repeat, it is not the act of saying "I do", but the marital relationship between the parties that may generate the obligation of non‑compensatory support pursuant to the Act. It follows that diverse aspects of that marital relationship may be relevant to the quantum of such support. As stated in Moge, "[a]t the end of the day ..., courts have an overriding discretion and the exercise of such discretion will depend on the particular facts of each case, having regard to the factors and objectives designated in the Act" (p. 866). [63] As to the consideration of need, she said, at para. ... It does not follow from the fact that need serves as the predicate for support that the quantum of the support must always equal the amount of the need. Nothing in ... the Divorce Act forecloses an order for support of portion of the claimant's need, whether viewed in terms of periodic amount or duration. Need is but one factor to be considered. This is consistent with the modern recognition, captured by the statutes, of the variety of marital relationships in modern society. spouse who becomes disabled toward the end of very short marriage may well be entitled to support by virtue of her need, but it may be unfair, under the circumstances, to order the full payment of that need by the supporting spouse for the indefinite future. [64] As to the effect of payor spouse, such as Mr. Bishop, entering into new relationship, she said: 56 Mr. Bracklow makes final policy argument. In an age of multiple marriages, he asserts, the law should permit closure on relationships so parties can move on. Why, he asks, should young person whose marriage lasts less than year be fixed with lifelong obligation of support? When can former spouse finally move on, knowing that he or she cannot be drawn back into the past by an unexpected application for support? 57 Again the answer is that under the statutes, the desirability of freedom to move on to new relationships is merely one of several objectives that might guide the judge. Since all the objectives must be balanced, it often will not be possible to satisfy one absolutely. The respondent in effect seeks judicially created "statute of limitations" on marriage. The Court has no power to impose such limitation, nor should it. It would inject rigidity into the system that Parliament and the legislatures have rejected. Marriage, while it may not prove to be "till death do us part", is serious commitment not to be undertaken lightly. It involves the potential for lifelong obligation. There are no magical cut‑off dates. [65] The evidence discloses that, rather than being independent, one from the other, Mr. and Ms. Bishop established an interdependent relationship; however, after Ms. Bishop stopped working, and on account of her ill health, Mr. Bishop provided for both of them. [66] In determining quantum, have considered the length of the marriage, the relative financial positions of the parties, the relationship Mr. Bishop has formed (and the fact that his partner receives child support) and Ms. Bishop’s ongoing illnesses and inability to work. While Mr. Bishop’s new relationship does not relieve him of his obligation to Ms. Bishop, that is not to say that Ms. Bishop is entitled to lifelong support to cover her entire budget. [67] Mr. Bishop has limited means. He pays $1600.00 per month under the interim order. Ms. Bishop claims that certain of his claimed expenses such as the automobile costs are inflated or non-existent. While am satisfied that his income is as claimed, agree that the car expense should be reduced. Deducting $600.00 leaves his claimed expenses at $2112.00. His situation is improved by the $300.00 in child support received by Mrs. Snow, and the $25.00 from her son. Otherwise, it appears he is meeting all the expenses for the household. also note that he does not show an amount for debt repayment. Taken together, these factors cancel the reduction of the car expense. [68] have referred to the Advisory Spousal Support Guidelines, which suggest support of between $1188.00 and $1584.00 per month. There is no specific recommendation for the duration of such payments. In Bracklow, upon the matter being remitted to the trial judge, the appellant was awarded $400.00 per month She was also receiving $846.00 in disability pension. The respondent was earning $71,000.00 per year plus benefits. The trial judge superimposed the clean break model upon the social obligation model, given the new relationship established by the respondent (see (1999) 1999 CanLII 5311 (BC SC), 181 D.L.R. (4th) 522 (B.C.S.C.)). Similarly, in this case believe it is necessary to apply the social obligation model along with the clean break model, in order to achieve justice (see Bracklow (S.C.C.) at para. 32). [69] No amount that can award for spousal support will meet all of Ms. Bishop’s financial needs. emphasize that “[a] spousal support order is not designed to equalize the lifestyles of the former spouses” but nevertheless the applicant has “a need that is obvious” while the respondent’s “ability to meet that need is limited”: Miller v. Miller (2001), 2001 NSCA 31 (CanLII), 193 N.S.R. (2d) 371 (C.A.) at para. 34. [70] I direct Mr. Bishop to pay to Ms. Bishop $1,000 per month in spousal support, commencing August 31, 2005, for a period of 10 years, up to and including July 31, 2015. The spousal support order will be open to variation if Ms. Bishop obtains a CPP disability pension or if Mr. Bishop retires from the Armed Forces. Similarly, if Ms. Bishop becomes fit to work, Mr. Bishop will be entitled to seek a variation. Finally, if Mr. Bishop makes an assignment in bankruptcy or a proposal under the Bankruptcy and Insolvency Act, which has the effect of requiring Ms. Bishop to pay any of the matrimonial debts, she will be entitled to apply for a variation in spousal support to cover any amount she is required to pay. This provides Ms. Bishop with complete indemnity with respect to the matrimonial debts. Of course, either party may apply for variation of the support order should there be any other change in circumstances. [71] have decided not to award costs, with the exception that Mr. Bishop is directed to pay Dr. Yafai’s account for his attendance to testify as an expert witness. [72] request that Mr. Mattson, Q.C. prepare the Divorce Judgment and Corollary Relief Judgment.

The parties were married for twelve years; there were no children of the marriage. The husband was in the military; the wife was a cleaner on a military base when the parties met and she changed jobs at the husband's direction. She now stated that she was unable to return to work due to health problems, including irritable bowel syndrome, depression and obsessive compulsive disorder. Both parties accused the other of conduct which diminished matrimonial assets. The wife's mother had advanced the parties a considerable amount of money during the marriage, with the final advance being the subject of an IOU. The husband is to be responsible for the matrimonial debts, with the net proceeds from the sale of matrimonial home to be paid ratably to those creditors; the wife is to receive 35% of the husband's pension entitlement; husband to pay spousal support in the amount of $1,000 per month for a period of ten years with the order open to variation if the wife obtains a C.P.P. disability pension or becomes fit to work or if the husband retires from the military or makes a proposal or an assignment in bankruptcy which has the effect of requiring the wife to pay any of the matrimonial debts.

7_2005nssc220.txt

Q.B. A.D. 1991 No. 4189 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: FIRST CITY TRUST COMPANY, and LOUIS DION, AND: Q.B. A.D. 1992 No. 2691 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: FIRST CITY TRUST COMPANY, and GREAT CANADIAN BINGO CORP., DEFENDANT D. Richardson and S. Schnell for the plaintiff S. Hansen for the defendants JUDGMENT BAYNTON J. December 14, 1993 Nature of the Applications The plaintiff applies to strike the statement of defence of the corporate defendant, Great Canadian Bingo Corp. The ground is that Leo Dion, the designated officer of the corporation pursuant to an agreement between the parties, failed to appear at an examination for discovery on November 23, 1993. The plaintiff applies to strike the statement of defence of the individual defendant, Louis Dion, on the same grounds. Scheduling of the Examinations In each case the plaintiff's solicitors had on several occasions telephoned the defendants' solicitor to schedule examinations for discovery and to obtain statements as to documents. None of the calls were returned. Finally the plaintiff's solicitors wrote to the defendants' solicitor proposing range of dates for the examinations for discovery and requesting the defendants' statements as to documents. The letter indicated that if no reply was made by October 25, 1993, the examinations would be unilaterally scheduled. No reply was made and accordingly appointments were taken out for the examinations in Saskatoon on November 23, 1993. The appointments were served on the defendants' solicitor at Prince Albert along with conduct money to cover travel from Prince Albert to Saskatoon and return. This step prompted brief letter from the defendants' solicitor to the effect that he had "difficulty" with the appointments. He stated that "Leo Dion is not in fact an Officer or Director of the Company [the defendant corporation] at the present time" and that he would have to seek instructions as to the proper officer to be examined. He also stated that Louis Dion "is presently residing in Vancouver" and that he would need the "appropriate" conduct money. He also stated he had "some difficulty" with the appointed date. He suggested no alternative date nor did he indicate that the conduct money tendered respecting Leo Dion was unacceptable. In view of the appearance defaults by the Dions on numerous previous occasions, the plaintiff's solicitors responded that despite the letter they would be attending at the examination and would hold the defendants' to their obligations to attend as well. Their further telephone calls to the defendants' solicitor were not returned. The statements as to documents were not provided as requested, and as yet have not been provided. The plaintiff's solicitor appeared at the scheduled examinations but neither Leo nor Louis Dion appeared, nor did anyone else appear on behalf of the corporate defendant, nor did the defendants' counsel appear. Events Leading Up to the Applications review of the history of events that have taken place respecting these two actions and the content of the numerous affidavits that have been filed, clearly indicates that the defendants or the Dions have little or no regard for the administration of justice. Their conduct can be characterized as contemptuous. Undoubtedly the solicitor for the defendants, in accordance with his duty to his clients, has carried out his clients' instructions. But as solicitor, he has duty to more than just his clients. He is also an officer of the court and as well, has duty of courtesy and professionalism to his fellow solicitors. Regrettably, as his conduct demonstrates, he has not maintained the level of courtesy and professionalism to his fellow solicitors that is to be expected of member of the legal profession. To put the applications before me in perspective, it is essential to review in some detail the relevant events and depositions over the last year. The plaintiff initially obtained default judgment against the corporate defendant and arranged for an examination in aid of execution. By agreement between the solicitors for the parties, Louis Dion was considered as the proper officer to be examined. Despite proper appointments being taken out and served, he failed to attend three of the four examinations scheduled in November and December of 1992. Late in December of 1992 the defendants' solicitor advised the plaintiff's solicitor that as of January 1, 1993, Leo Dion would be the proper officer to be examined on behalf of the defendant corporation. Another examination in aid of execution was scheduled for February 26, 1993, but Leo Dion, presumably taking his cue from Louis Dion, failed to appear. By this time, of the five examinations scheduled, only one had been attended and even it had to be adjourned to obtain certain undertakings. In April of 1993, Judge Wedge ordered that Louis and Leo Dion attend on May 20 to be examined on behalf of the corporation. Louis Dion appeared, testifying that he had resigned as director and officer of the corporation effective January 1, 1993, and that he knew nothing about any of its affairs. His statements "I have seen nothing, know nothing, don't talk to them. have no knowledge of their business, don't know no knowledge of anything" summarizes his testimony. Leo Dion, the officer who by that time was held out by the defendant corporation as its designated officer, failed to appear at the examination. corporations branch search subsequently conducted on May 27, 1993, indicated that the sole directors of the defendant corporation were shown to be Louis and Leo Dion. The address of Louis was shown as 43 Scenic Park Crescent, Calgary, Alta., while that of Leo was shown as Emma Lake, Sask. The plaintiff, faced with these events and information, understandably commenced contempt proceedings. The then solicitor for the defendants withdrew and the defendants became represented by their current solicitor. Despite the non-attendance of the defendants (or any counsel representing them at that time), on the return date of the contempt proceedings, an adjournment was granted by the court to permit the defendants or their counsel to appear and make representations. Those pending contempt proceedings presumably prompted an application by the defendants to set aside the default judgments against them. They were successful and were given leave to defend. The contempt proceedings were adjourned sine die. Leo Dion, on behalf of the defendant corporation's application to set aside the default judgment, swore an affidavit on June 1, 1993, (the date he was to have been in Chambers on the contempt applications), claiming that he was not aware that judgment had been entered against the corporation. His address was shown in the affidavit as "the City of South Surrey, in the Province of British Columbia". He swore that he was director of the defendant corporation and he set out details of his substantial personal involvement with it and its business operations. In second affidavit of the same date, filed in response to the contempt proceedings, he swore that he was "fully prepared to attend at further Examination for Discovery upon reasonable notice being provided to me". Louis Dion swore an affidavit on June 3, 1993, in support of his application to set aside the default judgment against him personally, claiming that he was not aware that judgment had been entered against him, or that any legal action had ever been commenced against him by the plaintiff, until he was so advised by his current lawyer on April 20, 1993. His address was shown as "the City of Vancouver". In second affidavit of the same date, filed in response to the contempt proceedings, he swore that he had resigned as director and officer of the defendant corporation in December of 1992, that he was former director and officer of it, and that "from January 1st, 1993 have not been involved in the business operations of Dion Entertainment Corp., nor the Defendant, Great Canadian Bingo Corp.". He also swore "as was no longer an Officer or Director of such company, [the defendant corporation], was not prepared nor able to respond to questions as to the business operations of the said Defendant after January 1st, 1993, as do not have any personal knowledge of such business operations". After the defendants were granted leave to defend on June 14, 1993, they filed defences to the actions. The current applications before the court arose out of unsuccessful attempts by the plaintiff to examine the defendants respecting their statements of defence. On the return dates of the motions, counsel for the defendants appeared. He was granted leave to file two affidavits of Louis Dion even though they were tendered for filing on the eve of the hearing of the motions even though they had not been previously served on the plaintiffs' solicitors. No affidavit or other material was filed on behalf of Leo Dion. In two affidavits dated November 30, 1993, Louis Dion swears that both he and his brother Leo Dion have been residing in British Columbia for the past year. What is significant about the affidavits is that Louis Dion swears he has personal knowledge that "Leo Dion is no longer an Officer nor Director of the Defendant company, as there has been number of recent management changes with the Company". He also swears that Leo Dion "has not been designated as the proper officer for such examination by the Defendant Company as of this date". This alleged detailed knowledge by Louis Dion of the affairs of the defendant corporation flies in the face of his earlier sworn testimony denying any knowledge whatsoever about anything to do with the defendant corporation or its affairs. As well, it is interesting that Louis Dion purports to give hearsay evidence about matters on which Leo Dion should be capable of giving direct evidence. It is also interesting that the defendant corporation who risks having its defence struck, is totally silent as to whom its proper officer might now be. This kind of inconsistent conduct and testimony throughout these proceedings causes me to seriously question the credibility of the defendants and their representatives and conclude that their evidence is unreliable. This conclusion on credibility is consistent with the comments and conclusions reached respecting the credibility and conduct of Louis Dion in Madison Development Group Inc. v. Phoenix Enterprises Ltd. et al. and Louis Dion and Dion Development Corp., (unreported Q.B. J.C.P.A. June 6, 1991). In that case contempt proceedings were also taken against him for failing to attend an examination for discovery and for falsely swearing as to his whereabouts on the date of the examination. He was at that time represented by his current counsel. Position Taken by the Defendants The position taken on these applications by the defendants is basically that their defences cannot be struck under Rule 231 because the examinations for discovery were not properly scheduled in accordance with the Rules. Both Dions are now presumably residents of British Columbia. Non- residents cannot be compelled to attend an examination for discovery by means of an appointment under Rule 228. They can only be compelled to attend by means of court order under Rule 229. The defendants and their counsel also maintain that there are two other reasons why Leo Dion cannot be compelled to attend. First there is no court order designating Leo Dion as the proper officer of the defendant corporation. Secondly, he is no longer an officer or a director of the corporation. The Requirements under the Rules Whether or not person is proper officer of the corporation, (whether designated as such by court order or by agreement under Rule 223(3)), and whether or not person is still an officer of the corporation, are facts relevant only to the issue as to whether or not that person's examination for discovery can be used as evidence. Such facts are not relevant to the issue of that person's compellability to attend an examination for discovery. Under Rule 222, any party, or any person who is or has been an officer or employee of corporation, is compellable to attend an examination for discovery. Under Rules 227 to 229, the residence of such person is relevant to the manner in which such person can be compelled to attend. If he is resident of Saskatchewan, an appointment can be utilized to compel his attendance. If however he is non-resident, court order must be obtained before he can be compelled to attend. Conduct money must also accompany the appointment or the order. As the Dions now apparently reside out of province, (assuming in their favour that this aspect of their evidence is true), they were not compellable to attend the scheduled examinations for discovery on the basis of an appointment. It is inherent in Rule 231 that person must be legally compellable to attend the time and place appointed for his examination before he can be found to be "refusing or neglecting" to attend and thereby guilty of contempt of court and liable to have his defence struck out. Accordingly, agree with the submissions of the defendants' counsel that the non-attendances of the Dions on November 23, 1993, do not constitute "refusing or neglecting to attend" within the meaning of Rule 231. It cannot be utilized respecting these particular non- attendances to strike their statements of defence. I am satisfied however, on the basis of their conduct exhibited throughout the whole of these proceedings, that Louis Dion, Leo Dion, and the defendant corporation, are guilty of contempt of court. The contempt proceedings instituted last spring are still before the court even though they were adjourned sine die at the time the defendants were permitted to file statements of defence. The defendants have abused the discretion of the court that was exercised in their favour to set aside the judgments obtained against them and to permit them to file defences. It is clear from the terms of the order, that this discretionary relief was not granted to enable the defendants to stall the action or to frustrate the determination of the plaintiff's claim. The defendants were expected to promptly file their defences and to proceed with reasonable dispatch through the various stages of the lawsuit until it is eventually determined. The conduct of the defendants and their solicitor, however, clearly indicates that, in the same fashion as before the contempt proceedings were adjourned, they have continued to duck and weave, and have effectively stalled all reasonable attempts on the part of the plaintiff to proceed with the lawsuit. The complaints of the defendants about the unilateral scheduling by the plaintiff's solicitors is without merit. The date was unilaterally set as a last resort because of the complete lack of courtesy and co- operation on the part of the defendants\' counsel. The plaintiff's solicitors were lead to believe, from previous statements made and positions taken by the Dions and their counsel, that the defendant corporation had now agreed that Leo Dion was the proper officer of the defendant corporation. The plaintiff's counsel were also lead to believe from numerous previous attempts at examinations, that the conduct money submitted was the proper amount. Until it was too late for the plaintiff to do anything about it, the defendants' counsel did nothing to dispel those reasonable assumptions. In my view he either deliberately or unwittingly was used by his clients to further frustrate the proper examination of them in these proceedings. Decision It would be inappropriate in the circumstances to strike the defendants' statements of defence. But the court has an obligation to supervise its process and see that contemptuous conduct is not rewarded or permitted to continue. This is particularly so when litigant abuses discretionary relief granted by the court in his favour. Here the defendants have consistently attempted to improperly thwart at every turn the efforts of the plaintiff to determine the matters raised in these lawsuits. accordingly order as follows: (1)The corporate defendant shall, within days of the date of this order, provide the plaintiff's solicitors with written notice of the person who it proposes is the proper officer to be examined on its behalf. If such person is not acceptable to the plaintiff, the plaintiff may make court application for the designation of the proper officer. (2)Failing agreement between the solicitors for the parties as to acceptable dates for the examinations for discovery of the individual defendant and the proper officer of the corporate defendant, the plaintiff\'s solicitors shall be entitled to unilaterally set the dates. Provided at least 14 days advance written notice of the dates is given to the defendants' solicitor, and unless otherwise ordered by the court, the individual defendant shall attend his scheduled examination, and the corporate defendant shall secure the attendance of its proper officer at its scheduled examination. In view of the past abuses, the defendants shall not be entitled to any conduct money for the initial attendances at the examinations for discovery or for any subsequent attendances required for the completion of the examinations. (3)The defendants shall serve and file their statements as to documents within 14 days of the date of this order. (4)The plaintiff shall have its costs of these applications in any event of the cause. fix these costs at $1,000.00 against the corporate defendant and $500.00 against the individual defendant. The costs shall be paid by the defendants to the plaintiff within 14 days of the date of this order. (5) If defendant fails to comply with the terms of this order, the plaintiff may apply to this Court to have that defaulting defendant's defence struck out.

The plaintiff applied under Queen's Bench Rule 231 to strike the statements of defence of a corporate and individual defendant for failure to attend scheduled examinations despite service of an appointment and payment of conduct money to their solicitor. The defendants had previously been permitted to re-open judgments obtained against them and had filed defences. Prior to that they had consistently failed to attend examinations in aid of execution. Contempt proceedings had been commenced against them but were adjourned sine die at the time the defendants were permitted to defend. The defendants resisted the application on the basis that they were now non-residents and not compellable by an appointment, and that the designated officer of the defendant corporation was no longer an officer. This information had not been communicated to the plaintiff's solicitor who had acted in good faith on information given to him previously by the solicitors for the defendants. The examinations had been scheduled unilaterally because the defendants' solicitor consistently refused or neglected to return phone calls or correspondence from the plaintiff's solicitors. HELD: The judge refused to strike the defences holding that in the circumstances Queen's Bench Rule 231 did not apply. He also held that the defendants, considering their conduct throughout the whole course of the lawsuit, were in contempt and ordered them to attend without conduct money any examinations unilaterally scheduled by the plaintiff failing agreement between counsel as to dates. Costs were fixed at $1,500 in any event of the cause and were ordered to be paid within two weeks.

5_1993canlii6695.txt

NOVA SCOTIA COURT OF APPEAL Citation: Cape Breton Development Corporation v. D. Roper Services Ltd., 2005 NSCA Date: 20050120 Docket: 183925 Registry: Halifax Between: D. Roper Services Limited Appellant Respondent by Cross-Appeal v. Cape Breton Development Corporation Respondent Appellant by Cross-Appeal Judges: Cromwell, Oland and Hamilton, JJ.A. Appeal Heard: September 14, 2004, in Halifax, Nova Scotia Held: Appeal and cross-appeal dismissed per reasons for judgment of Cromwell, J.A.; Oland and Hamilton, JJ.A. concurring. Counsel: Vincent Gillis, for the appellant/ respondent by cross-appeal Aidan Meade and John W. MacDonald, for the respondent/appellant by cross-appeal Reasons for judgment: I. Introduction: [1] The Cape Breton Development Corporation (“Devco”) invited tenders in the spring of 1985 for the banking, blending and lifting of coal products at its Victoria Junction Coal Preparation Plant. D. Roper Services Limited (“Roper”) was the successful bidder. Roper commenced work under the contract in July of 1985 and continued working until the contract was terminated by Devco in March of 1986. [2] Devco sued, claiming that Roper had been unable to provide the services required under the contract. Devco claimed damages including the revenue lost from plant down time, the cost of renting substitute equipment, the cost of contracting for substituting services and the payments advanced to Roper in excess of work performed. Roper defended and counterclaimed in negligent misstatement and breach of contract. Roper alleged that Devco negligently estimated the quantities of product to be handled under the contract and, as result, induced Roper to enter into contract from which it was unable to derive anticipated profits and from which it incurred start up costs and operating losses. Roper also alleged various breaches of contract by Devco including wrongful termination. [3] The action was tried over nearly 30 days before MacAdam, J. in the Supreme Court (reported at (2001), 2001 NSSC 179 (CanLII), 202 N.S.R. (2d) 201). The trial judge held that both parties had breached the contract, Roper by failing to perform and Devco by failing to provide the approximate tonnages set out in the invitation for tenders and the contract. [4] The judge assessed damages in favour of Devco in the amount of $270,307.05. These damages related mainly to the costs incurred by Devco in obtaining substituted performance of the contract and the refund of overpayments made to Roper for which no work had been performed. The judge also awarded $10,000 damages to Roper. These damages related to Roper’s additional effort, costs and expenses beyond that contemplated in the contract. Aside from that, he awarded nothing to Roper. Critical to the judge’s determination of Roper’s damages was his finding that even if Roper had performed the contract and Devco had provided the approximate tonnages set out in it, Roper would have continued to operate at loss. As result, the judge held that Roper did not suffer any loss as result of Devco’s termination of the contract. [5] Roper appeals, arguing that the judge erred in finding that it was in breach of contract, in failing to find Devco liable in negligent misstatement and in assessing damages as he did. Devco cross-appeals, submitting that the judge erred in finding that Devco was in breach of the contract and in holding that it was not entitled to rely on the exclusion from liability provisions in it. [6] In my view, the appeal should be dismissed. Roper’s appeal is directed primarily at the trial judge’s findings of fact. However, the judge did not make any reviewable error with respect to the facts. As for the cross-appeal, Devco acknowledges that if the appeal fails, the cross-appeal will have no effect on the trial judge’s order. It is, therefore, not necessary to address the issues raised by cross-appeal and it, too, should be dismissed. II. Overview of the Facts and Findings of the Trial Judge: [7] To understand the issues on appeal, it is necessary to know something about Devco’s operations, about the tender and about the subsequent contract which has given rise to the dispute. will set out that background and then turn to the claims made by the parties at trial and the key findings made by the trial judge. 1. Devco’s operations: [8] Devco mined coal from its Prince and Lingan Mines. The coal from the Lingan Mine was shipped by rail to the Victoria Junction Coal Preparation Plant (“VJCPP”) for waste rock separation, ash removal and sulphur reduction. The so-called clean Lingan coal, which was the output of the VJCPP, was trucked from the plant load-outs to storage banks at the lifting and banking centre (“LBC”). Prince Mine coal was trucked to the LBC by independent contractors or Devco’s own fleet. [9] Coal was mixed at the LBC by banking and blending in order to achieve the required quality for use in electric power generating plants (thermal coal) or for the steelmaking industry (metallurgical coal). The various banks of coal were located in three general areas: rectangular paved area, an area along “H” track and an area along “C” track. [10] The banks were adjacent to rail lines. Front end loaders were used to lift coal from the base of the bank and deposit the contents of the loader’s bucket into the rail car. Bulldozers were used along the banks to push the coal over the upper edge down to the loaders. This operation allowed the loaders to dig relatively loose coal without undermining the bank face. Following banking and blending, rail cars were loaded with coal at the LBC for shipment to customers. Devco had its own rail cars for delivery to its customers and to transport coal to the international pier for loading on to ships. [11] The banking, blending and lifting operations were carried out by an independent contractor. The contractor, in addition to banking, blending and lifting, was responsible for maintaining the banks and for cleaning access roads and ditches. 2. The tender: [12] In the spring of 1985, the contract for banking, blending and lifting was coming to an end and Devco put the work out for tender. Fifteen contractors were invited to tender on contract which was to run from June of 1985 to March of 1988. Roper responded and its bid was the lowest. The tender included unit prices, list of equipment to be used, hourly rental rates and single stand-by rate applicable to each piece of equipment. [13] pre-award meeting was held in May of 1985 among representatives of Devco and Roper. Donald Roper advised Devco that he did not have the equipment listed in the tender. He assured Devco, however, that it would be on site within two weeks of notification of the award of the contract. Devco awarded the contract to Roper. 3. The contract: [14] The contract consisted of purchase order and the general conditions and specifications set out in the invitation to tender which the purchase order incorporated. The purchase order covered the equipment rental costs and services required for the coal handling banking, blending and lifting at the LBC and the VJCPP from June 17/85 to March 31/88. It listed the cost description, as tendered by Roper, for eight items: Item1 The banking and blending of approximately $3,387,500 tonnes of VJCPP product at an average rate of approximately 2500 per shift at the rate of 35¢ tonne. Item The banking of approximately 875,000 tonnes of thermal product from the VJCPP. This product could be from either the Thermal chute or the Met Chute, depending on the operation mode at the plant at the rate of 35¢ tonne. Item The banking of approximately 980,000 tonnes of Metallurgical product from the VJCPP at rate of approximately 3000 tonnes per shift at the rate of 35¢ tonne. Item The blending and banking of approximately 3,906,228 tonnes of Prince Mine, Selminco and Guildcraft products delivered by CBDC and contracted vehicles at 20¢ per tonne. Item The banking of approximately 170,000 tonnes of Domestic screened and Pea products from the Thermal Loadout area. To designated banking area. The Contractor will be required to use bin radial stacker to handle these products to prevent extra handling and deterioration of quality and sizing. Item The lifting from various stockpiles of approximately 9,438,000 tonnes of product from the LBC and VJCPP at 18¢ per tonne. Item Stand by rate Banking and Lifting: Banking, 680 hours Lifting, 680 hours 1,360 hrs. at $22.00 per hr. Item Equipment rentals, Extra work, To cover machine rentals required for extra work outside specifications of contract for coal handling. Loaders, Cat. 992, 13 cu. yd. at $65.00/hr. Rubber Tire Dozer, 988 at $45.00/hr. Graders at $36.00/hr. Dozer, D-8 at $48.00/hr. Loader A-66 at $46.00/hr. Tandems at $30.00/hr. Tractor Trailer c/w bottom dump trailers $38.00/hr. From the time of the commencement of this work until the completion of same, you are to maintain insurance against any claims under Workmen’s Compensation Acts, also any other claims for personal injury including death, also property damage which may arise from your operation under this contract. NOTE: Any change in cost of fuel, wages or subsidy rates subject to negotiation. [15] With one exception, these cost descriptions contained the same estimated quantities of coal as set out in the invitation to tender documents. The exception relates to Item in which the invitation to tender had referred to 4,503,300 tonnes of Prince Mine Selminco and Gillcraft products whereas the purchase order, as noted, refers to 3,906,228 tonnes. [16] As noted, the contract also included number of other specifications and conditions. Its term was three years on three shift per day and five day per week for banking or seven days per week for lifting schedule. The trial judge summarized the other key provisions of the contract as follows (para. 11): Clause “Contract Term” Contract was to run from June 17, 1985 to March 31, 1988 “subject to cancellation Clause 14". Clause “Work Schedule” The work was to be carried out twenty-four hours per day on three-shift basis as needed. The banking and blending work was to be five-day week on an “as required basis”. The lifting was to be seven-day week, again “as required”. As well the contractor was to arrange his operations to coincide with the schedule of the Coal Preparation Plant and delivery of coal from other sources, as well as the lifting schedule as determined by the Superintendent of Coal Handling”. Clause “Contractor’s Equipment” The contractor was required “to supply and maintain” sufficient equipment. In particular, this clause listed trucks, regular dumps and/or bottom dump trailers, graders, rubber-tired dozer and loaders. This clause expressly stated that “delays in operations due to breakdown of equipment will not be tolerated. The contractor shall maintain sufficient standby equipment to prevent delays due to equipment failure”. Devco reserved its right to reject equipment not in proper repair and to substitute from other sources at the contractor’s expense if Devco deemed it necessary to maintain continuous and consistent operation. Clause “Banking CPP” This clause also emphasized the need to have sufficient equipment available. In particular the contractor was to have enough equipment to truck coal from the wash plant and take it to the banking areas. Banking was to be carried out on an “as required” basis. It also called for the contractor to maintain banking areas in general. Clause “Banking Blending Prince Coal Other Production” This clause once again emphasized the requirement to have sufficient equipment on hand to handle the banking and blending of coal from the Prince Mine as well as other sources. Prince Coal was to be blended with product from the wash plant. Clause “Lifting” This clause set out in detail the many obligations of the contractor relating to lifting off banked and blended coal. There was emphasis placed on avoiding “unnecessary delays”. Once again the contractor was obligated to “maintain sufficient loading equipment on the site”. With regard to the CN railcars, the contractor was obliged to load to the proper weight. Clause 10 “Coal Tonnages” This clause is short but important in the context of this action and is therefore set out in full: “The tonnages of coal indicated in this Contract are approximate and are based on the latest information available. The Corporation assumes no responsibility for quantities above or below the tonnages indicated”. Clause 12 “Inspection” This clause required the contractor to “thoroughly familiarize himself” with operations at the wash plant and LBC before submitting bid. Clause 14 “Contract Cancellation” Again this is short but important clause and is out in full: “This contract may be cancelled by either party following written notice thirty (30) days in advance of such intention or by mutual agreement by both parties.” 4. Roper’s Equipment: [17] An important issue at trial was whether Roper had sufficient suitable equipment to perform the contract. The background, in brief, is this. [18] On receipt of the purchase order, Roper advised Devco that it was not able to put the equipment on site by June 17th, 1985. There was meeting with Devco on June 12th at which Roper estimated it could be on site by July 24th. Devco agreed to accommodate Roper by postponing the commencement of the contract to that date. [19] Roper engaged the services of Mr. Fisher, an equipment broker, to locate and arrange for the purchase of equipment suitable for the coal handling contract. Fisher was not called to testify. Roper eventually purchased an assortment of used equipment. Devco representatives saw Roper’s equipment shortly after it arrived on the property. While they knew that it was different from the list in Roper’s tender, they could not see anything inherently wrong with what Roper had purchased. [20] Roper experienced problems with its equipment from the start. Breakdowns began in early August and increased in frequency and severity until Devco terminated the contract in March, 1986. 5. Work at “C “and “H” Tracks; Quantity of Coal; Contract Amendment: [21] Roper raised concerns that the amount of coal being made available by Devco was considerably less than that contemplated by Devco’s estimates in the invitation to tender and the contract. The lower quantities meant less money coming in for Roper. [22] Roper’s accountant suggested an amendment to the contract to allow for weekly draw based on projected production. Devco agreed. The contract was amended in December of 1985 to provide for weekly draw in an amount not to exceed $33,000.00 to be credited against the amounts owed by Devco to Roper for work performed under the contract. These weekly draws were paid by Devco to Roper beginning in mid-December until the termination of the contract in March of 1986. [23] significant issue at trial related to the operations at “C” and “H” tracks. Roper’s position was that it was required to do far more work in these areas than contemplated by the contract and that this, in turn, adversely affected its ability to carry out the contract work. [24] The trial judge found, and it is not now in dispute, that Roper’s contractual obligations at “C” and “H” tracks were limited to depletion of banks existing as of the commencement of the contract. It appears to be common ground that portion of Clause of the contract, understood in the context of Devco’s operations and the intentions of the parties, leads to this result. That portion of Clause reads as follows: The Contractor shall maintain sufficient loading equipment and personnel on each shift to load rail cars and/or trucks with coal from the various stockpiles at the Coal Preparation Plant until their depletion. [25] Devco’s position was that only one new bank was built at “H” track and that there were only 12 days of lifting from that bank from January 1986 until the termination of the contract on March 11th. Roper’s counsel conceded, during argument of the appeal, that all work performed by Roper on “H” track up until January was contract work and that, as “C” track was never depleted, all work performed there was contractual. 6. Termination of the contract: [26] Clause 14 of the contract permitted either party to terminate the contract on 30 days written notice: 14. Contract Cancellation This contract may be cancelled by either party following written notice thirty (30) days in advance of such intention or by mutual agreement by both parties. [27] From Devco’s perspective, Roper’s performance of the contract was shambles. It terminated the contract effective March 11th, 1986 without notice. 7. Devco’s claims: [28] Devco sued for damages for breach of contract. Its position was (and is) that Roper simply could not perform the contract and that Devco is entitled to be reimbursed for the money it expended in securing alternative performance through renting equipment and hiring others to do the needed work. It also claimed for overpayment it says was made to Roper under the draw system set up in the amended contract. 8. Roper’s claims: [29] Roper claimed for damages for breach of contract, in particular for its loss of profit, alleging that the tonnages supplied by Devco were so substantially less than the estimates given in the contract that Devco was in breach. Roper also claimed against Devco in negligent misrepresentation. In essence, Roper claimed that the estimates of the quantity of coal were negligently made and induced it to enter into the contract. In addition, Roper claimed for losses it suffered in the forced liquidation of its equipment after Devco’s termination of the contract and sought exemplary damages for what it said was Devco’s bad faith. 9. The trial judge’s findings: liability a. breach by Roper: [30] The trial judge found that Roper had breached the contract fundamentally and that Roper’s inability to perform justified Devco’s termination: para. 191. As explained by the Supreme Court of Canada in Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423 at para. 50, fundamental breach “... permits the non-breaching party to elect ... to put to an end all remaining performance obligations between the parties.” This is what Devco purported to do and the trial judge found that Roper’s breach entitled it to do so. [31] The trial judge concluded that “[c]learly Roper Limited was unable to perform its obligations under and pursuant to the contract.” (para. 94) In addition, the trial judge found that Roper was only “modestly successful” in obtaining substitute or third party rental equipment. This meant that Devco had to bring additional equipment on site to carry out the work: para. 85. The trial judge found that “... it is clear that in the vast majority of occasions Roper Ltd. was simply unable to provide substitute equipment as required.”: para. 41. [32] The trial judge emphatically rejected Roper’s contention that the work it was required to do at “C” and “H” tracks was any sort of justification for its failure to perform the contract: para. 51. b. breach by Devco [33] The trial judge found that “..., there was undeniably very substantial shortfall in the tonnages generated by Devco as compared to the tonnages set out in the purchase order.” The trial judge accepted Roper’s position that, during its performance of the contract, the tonnages handled were between 30 and 40% less than the estimates contained in the invitation to tender and the contract: paras. 96 and 148. He found that Devco had contracted to provide the approximate tonnages indicated. While the tonnages of coal were approximate and, therefore, not warranted, this did not put the tenderer on notice in setting its rates that the volumes could vary by as much as 30 or 40% as they did. The judge found that the parties contemplated that the rates would be calculated on the basis of approximate tonnages and that the anticipated tonnage directly affected both the rate to be charged per tonne and the amount of equipment the tenderer was required to have on site. [34] While Clause 10 of the contract stated that Devco assumed no responsibility for quantities being above or below the estimates, the judge found Devco could not rely on this clause. He concluded that Devco’s failure to provide the approximate tonnages referred to in the contract was fundamental breach and that it would be unconscionable to allow Devco to rely on this exclusion of liability: para. 151. [35] A “fundamental breach” of the contract by Devco would have given Roper the right to terminate the contract, but Roper did not do so. It follows, as the trial judge was careful to point out at para. 153 of his reasons, that the concept of “fundamental breach” in the context of Devco’s tonnage estimates is relevant only to the issue of whether Devco could rely on the exclusion of liability clause relating to its estimates. The trial judge did not hold that Devco’s own breach of contract in any way undermined its right to terminate the contract as a result of Roper’s breach. [36] The trial judge rejected Roper’s claim in negligent misstatement. The invitation to tender and the contract indicated that “the tonnages of coal indicated ... are approximate and are based on the latest information available.” The trial judge found that Roper had failed to establish that the representation that the tonnages indicated were based “... on the latest information available” was untrue: para. 132. He also found that there was no evidence of negligence on Devco’s part in formulating the estimates. Accordingly, the negligent misstatement claim was dismissed: para. 137. [37] The trial judge rejected Roper’s claim arising from alleged forced liquidation of its equipment: para. 177. The judge also rejected Roper’s claims that Devco acted in bad faith or treated Roper unfairly: paras. 34 to 38. Roper’s claim for exemplary damages was therefore dismissed. 10. The trial judge’s findings: damages a. Devco’s damages [38] The trial judge found Roper liable for sums Devco paid to rent equipment when Roper’s equipment was not available, to restore conditions of the banks after termination and to repair damage to certain of its property caused by Roper. The trial judge also found that by the time of termination, Roper had received more money under the weekly draw than it was entitled to for the work done. The assessment of Devco’s damages under these headings was as follows: Rental of Equipment $130,179.00 Restoration of Banks $46,582.00 Damage to Devco Rail Cars, Steel Cable Sling $1,432.00 Overpayment to Roper $92,114.05 Total Devco Damages: $270,307.05 b. Roper’s Damages: [39] As noted, the trial judge rejected Roper’s contention that the work it was required to do at “C” and “H” tracks was any sort of justification for its failure to perform the contract: para. 51. He found that Roper had been paid for the coal banked and blended on “C” and “H” tracks. In the judge’s view, the only issue was whether the continued activities at these tracks entitled Roper to some reimbursement for any additional cost or expenses incurred by the continued use of these tracks: para. 181. In the absence of evidence as to the actual extra costs, and recognizing the virtual impossibility of establishing them, the trial judge found that Roper was entitled to fair and reasonable compensation under this heading. He assessed this in the amount of $10,000.00: [40] The trial judge rejected Roper’s claim for loss of profit. He concluded that Roper operated at loss during the period preceding the termination of the contract. He also found that it had been established beyond the balance of probabilities that Roper would have continued to lose money until its conclusion had it not been terminated. This would have been so, he found, even if Devco had supplied the approximate tonnages referred to in the purchase order. He stated: “... there [was] nothing in the evidence to suggest Roper Ltd. would have ever achieved profit, even if the tonnages suggested in the purchase order had been provided.” (emphasis added): para. 172. [41] The judge, therefore, found that there was no loss of profits arising as result of Devco’s termination. He further found that Clause 14 of the contract, permitting termination on 30 days’ written notice, would have the effect of limiting any such damage claimed to 30 days from the date Devco actually terminated the contract: para. 192. [42] Apart from the $10,000 which he awarded to Roper for extra work at “C” and “H” tracks, the judge dismissed all of Roper’s damage claims. [43] In my view, the issues that determine the outcome of the appeal and cross-appeal are these: 1. Did the trial judge err in finding that Roper breached its contract with Devco and that the breach entitled Devco to terminate the contract without notice? 2. Did the trial judge err in awarding Devco damages? 3. Did the trial judge err in finding that Devco was not liable to Roper in negligent misrepresentation? 4. Did the trial judge err in finding that any breach of contract by Devco did not occasion loss to Roper? 1. Standard of Review: [44] Findings of fact will not be reversed on appeal unless the trial judge made palpable and overriding error. The same degree of deference is paid to inferences drawn from the facts and to all of the trial judge’s findings whether based on findings of credibility or not: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] S.C.R. 235 per Iacobucci and Major, JJ. at paras. 10 and 23 to 25. [45] Mixed questions of fact and law, such as the application of legal standard to set of facts, should be reviewed according to the palpable and overriding error standard unless the alleged error can be traced to an error of law which may be extricated from the mixed question of law and fact. Where that is possible, the alleged legal error should be reviewed on the standard of correctness: Housen, supra at paras. 26 through 35. [46] Errors of law, such as the misstatement of legal principle or wrong characterization of legal standard, attract the correctness standard of review: Housen, paras. 33-34. 2. Did the trial judge err in finding Roper in breach of contract justifying Devco’s cancellation of the contract without notice? [47] Roper acknowledges that there were production problems. Its principal argument, however, is that these problems arose from the fact that Devco required Roper’s crews to spend inordinate amounts of time at the old coal bank sites at “C” and “H” tracks. Roper submits that Devco made substantial change to the contract because it continued to stockpile coal at “C” and “H” tracks in addition to the operations at the new LBC. The working conditions at “C” and “H” tracks were difficult, says Roper, and this caused reductions in productivity and failure of equipment. Roper goes so far as to say that it “should not even have been operating” at “C” and “H” tracks and that the work at “C” and “H” tracks “was mostly outside the contract.” [48] These submissions attack the trial judge’s findings of fact. In essence, Roper’s position is that the trial judge did not “... fully take into account and draw the proper inferences from the testimony of witnesses who said Roper’s equipment complied with job requirements ... or the evidence with respect to the damage that was being done to Roper’s equipment by continuing to work at “C” and “H” tracks. ...” Roper submits that the trial judge drew an inference that was “unsupportable on the evidence” when he concluded that Roper’s equipment was not suitable to the job and the production problems resulted from that. [49] In summary, Roper says that the evidence at trial supports the submission that Devco’s own actions and changes to the contract regarding where Roper was working ultimately caused the equipment and production problems. [50] With respect, these submissions amount to an invitation to retry the case. While there was some evidence to support the position Roper now advances, this evidence was clearly not accepted by the trial judge. There was much evidence to support his conclusions. can see no palpable and overriding error made by the trial judge in reaching the conclusions he did. [51] Roper’s submissions exaggerate the extent of non-contractual work performed at “C” and “H” tracks. As noted earlier, the contract contemplated depletion of the banks at these locations. During oral argument, counsel for Roper conceded that all work done at “C” and “H” tracks until January of 1986 was work contemplated by the contract. It was also conceded that the banks at “C” track were not depleted prior to the termination of the contract. That being so, it is impossible to accept the submission that the trial judge erred by failing to find that there had been any major redirection of work to “C” and “H” tracks that was not contemplated by the contract. [52] Similarly, cannot accept the appellant’s submission that the judge erred in finding that the work on “C” and “H” tracks caused Roper’s equipment failures. Mr. Sobek, senior mining engineer, gave evidence concerning heavy equipment utilization and productivity with respect to coal operations and the likely causes of equipment failure. Briefly put, he said that Roper’s equipment failed because it was old, not because of the working conditions at “C” and “H” tracks. His evidence was to the effect that Roper’s front end loaders and coal haulers were available on average 66 and 65% of the time, respectively. He further testified that acceptable industry standards of availability would be between 80 and 90% and that less than 70% over long durations indicates fundamental flaws in the equipment and/or maintenance practices. Mr. Sobek’s opinion was that “excessive wear and tear and breakdown are the result of purchasing used equipment which we consider to be beyond their normal (industry standard) useful and productive lives.” He rejected Roper’s contention that the working conditions at “C” and “H” tracks contributed to the equipment problems, dismissing this effect as “negligible.” [53] Mr Sobek’s opinion is supported by the evidence concerning extent of the work at “C” and “H” tracks. The vast majority of that work was contemplated by the contract. There was no evidence before the Court that the banks at “C” track were ever depleted and only one new bank was constructed at “H” track. After January of 1986, there was only minimal lifting carried out at “H” track and no lifting from “C” track. [54] The trial judge obviously accepted Mr. Sobek’s evidence and opinion and reached the following conclusions: [51] am satisfied, to the extent Roper Ltd. was required to lift from “C” and “H” tracks, this was consistent with its obligations under the contract, providing the coal lifted had existed on the tracks at the time Roper Ltd. came on site. To the extent there was any banking or other lifting at either “C” or “H” track, this was additional to the contract. Although these were not, as suggested by Roper Ltd.’s counsel, some kind of justification for the equipment failures, am satisfied there was additional time, effort and expense incurred in such activities. [93] The inability of [Roper’s] equipment to perform as required is evident from the tabulation of breakdowns noted in the various shift reports ... [94] Clearly Roper Limited was unable to perform its obligations under and pursuant to the contract. [55] In essence, counsel for Roper submits that the trial judge should have preferred the evidence of Mr. Ryder, its expert, to that of Mr. Sobek. However, counsel is unable to point to any palpable or overriding error in the trial judge’s assessment of this evidence. [56] The judge’s decision to accept the evidence of Mr. Sobek should not be interfered with on appeal. conclude that the trial judge made no palpable and overriding error in concluding that Roper was unable to perform its obligations under the contract or in rejecting Roper’s contention that Devco’s banking at “C” and “H” tracks contributed to Roper’s inability. His finding, to paraphrase Guarantee Co. v. Gordon Capital, supra, at para. 50, was of failure in Roper’s performance of its obligations under the contract that deprived Devco of substantially the whole benefit of the contract. That being the case, the trial judge was right to conclude that this failure entitled Devco to terminate the contract without notice. 3. Did the judge err in awarding Devco damages? [57] Roper submits that the judge erred in awarding any damages to Devco because he found that it was in “fundamental breach” of its contractual obligation to Roper. I reject this submission for two reasons. [58] First, the judge made it clear that Roper did not at any point seek to terminate the contract, but instead continued to perform and obtained concessions by way of the weekly draw: para. 145. From Roper’s perspective, the contract continued. Any breach by Devco, therefore, did not undermine Devco’s ability to terminate the contract as a result of Roper’s breach. [59] Second, the judge, in relation to Devco’s breach, used the term “fundamental breach” only in the sense that the term is relevant to the effect of the exclusion of liability for the estimates contained in para. 10 of the contract. As he said at para. 153 of his reasons, “[t]he concept of fundamental breach is only relevant, in the present case, as descriptive phrase for the nature of the failing by Devco, and it is in the construction of the exclusion clause that have denied Devco exemption or exclusion from the breach.” [60] therefore do not agree that the judge’s use of the term “fundamental breach” in relation to Devco precluded the judge from awarding damages to Devco for Roper’s failure to perform its obligations under the contract. 4. Negligent misrepresentation: [61] As noted earlier, the invitation to tender and the contract contained estimates of the tonnages of coal to be banked, blended and lifted. These tonnages were indicated to be “approximate” and “based on the latest information available”. Roper claimed that these estimates were negligently made by Devco and that Roper relied on them to its detriment. [62] As noted, the trial judge rejected this claim. He set out the five elements of claim in negligent misrepresentation as described by Iacobucci, J. in Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] S.C.R. 87 at p. 110: (1) there must be duty of care based on “special relationship”... (2) the representation in question must be untrue, inaccurate or misleading; (3) the representor must have acted negligently in making said representations; (4) the representee must have relied, in reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damage resulted. [63] The trial judge found that Roper’s claim failed primarily on the third element of the test: Roper failed to prove that Devco had been negligent in making the estimates. [64] Roper challenges this conclusion on two bases. First, it is submitted that the burden of proof was on Devco to show that the information was compiled with reasonable care. Second, it is submitted that the trial judge erred in failing to draw the inference of negligence from the evidence presented. do not accept either of these submissions. [65] With respect to the first, the burden of proof of negligence was on Roper: Hedley Byrne Co. v. Heller Partners Ltd. [1964] A.C. 465 per Lord Morris at 493; G.H.C. Fridman, The Law of Torts in Canada (2nd ed., 2002) at 403. [66] As for the second point, the trial judge accepted the evidence of Devco’s witness, Mr. MacVicar. He testified that he used the latest figures received from the production and marketing divisions in preparing the estimated tonnages. The trial judge also pointed out that the mere fact that statement of future expectations turns out to be inaccurate, as these projections did, does not mean the statement was made negligently: para. 136. [67] These findings of fact and the drawing of appropriate inferences are reviewable on the palpable and overriding standard. In my respectful view, the appellant has not met the standard of appellate review with respect to these conclusions. The judge did not err in dismissing Roper’s claim for negligent misrepresentation. 5. Did the trial judge err in finding that any breach of contract by Devco did not occasion loss to Roper? [68] The trial judge found as fact that even if Devco had provided the tonnages estimated in the purchase order, Roper would still have lost money had it continued to perform the contract. In this respect, the trial judge accepted the evidence of Devco’s witness Grant Thompson, an accountant, that using the tonnages provided for in the purchase order, Roper would still have incurred loss over the term of the contract: para. 172. [69] Assuming, without deciding, that Devco was in breach of contract, see no error on the part of the trial judge in concluding that Roper had failed to prove damages. It was open to the judge to accept Mr Thompson’s evidence and see no palpable and overriding error in his having done so. [70] Roper alleged that Devco exhibited bad faith in its dealings with Roper. The trial judge rejected these submissions: paras. 34 40. Roper’s appeal against this finding was not strongly pressed during oral argument and can see no error on the part of the trial judge in rejecting this claim. It follows that the judge did not err by refusing the exemplary damages which Roper claimed on the basis of this alleged bad faith by Devco. [71] Roper also claimed just under $300,000.00 as loss on the sale of its assets, maintaining that as result of the early termination of the contract, the assets were sold at less than their value. Even if the judge had found Devco in breach for wrongful termination, he would have rejected this claim. He found that there was “no satisfactory evidence the liquidation of the equipment purchased by Roper Ltd., as result of the termination of the contract, resulted in any loss that is otherwise claimable against Devco.”: para. 177. [72] In reaching this conclusion, the trial judge once again relied on Mr. Sobek’s evidence. It was to the effect that Roper paid substantially in excess of market value for the equipment that it purchased, that the liquidation of the equipment occurred some time following the termination of the contract and that there was insufficient evidence to show that the amounts received on the sale were anything but appropriate given the state of the equipment at the time. The trial judge said: [176] On the evidence, it appears Roper Ltd. paid at least “premium” prices for this equipment; it was old at the time it was first placed on the site and it suffered series of repeated breakdowns. It is therefore not surprising the amounts realized were substantially less than the apparent amounts paid by Roper Ltd. for the equipment, particularly the amounts as summarized in the Ryder report. Thompson, in his report, notes if the equipment had been depreciated over the term of the contract, the additional depreciation would have eliminated the suggested loss on disposal. [177] There was no satisfactory evidence the liquidation of the equipment purchased by Roper Ltd., as result of the termination of the contract, resulted in any loss that is otherwise claimable against Devco. In the circumstance, am satisfied there was no loss from any forced liquidation arising from the termination of the contract. [73] Roper has not shown that the trial judge made any reviewable error in reaching these conclusions. [74] In view of the conclusions have reached, it is not necessary to consider whether Devco was entitled to rely on its early termination clause to limit losses by Roper. 5. Other issues: [75] In light of Devco’s concession that if the trial judge’s assessment of damages is upheld, the issues raised by way of cross-appeal would have no practical effect on the outcome, it is not necessary to address those issues. V. Disposition: [76] I would dismiss the appeal with costs fixed at $5,000.00 plus disbursements. I would dismiss the cross-appeal without costs. Cromwell, J.A. Concurred in: Oland, J.A. Hamilton, J.A.

The defendant obtained a tender to bank, blend and load coal at the plaintiff's coal preparation plant. In performing the contract, the defendant experienced equipment problems resulting in the plaintiff having to rent other equipment. The plaintiff terminated the contract without any prior warning or notice to the defendant and brought an action for reimbursement of monies advanced under the contract and expenses incurred for the equipment rentals. The defendant counter-claimed for damages arising out of the termination of the contract, for services performed under the contract and for extras which had not been paid. The court found that the plaintiff was entitled to reimbursement for overpayments and equipment rentals and that the defendant was entitled to fair and reasonable compensation for extras for which the court awarded the sum of $10,000. Both parties were found to be in breach of the contract, the plaintiff's breach occurring because the volumes of coal supplied did not approximate the tonnages represented in the contractual documents. The clause excluding liability for errors in the forecast did not excuse the plaintiff because the actual volumes were not even approximate to the forecasted tonnages and the rates bid by the defendant were directly related to the anticipated tonnages. Absent evidence as to how the plaintiff arrived at the information used in the calculation of the forecasted tonnages, no negligent misrepresentation could be found, as there was no evidence that the information was negligently obtained. Both parties appealed. Appeal and cross-appeal dismissed; the trial judge's finding that the defendant had fundamentally breached its contractual obligations which entitled the plaintiff to terminate the contract without notice should not be disturbed; thus, the trial judge did not err in awarding the plaintiff damages for the defendant's breach of contract. The defendant did not establish that the plaintiff had been negligent in making the tonnage estimates and thus, the judge did not err in dismissing the defendant's claim for negligent misrepresentation. Although the trial judge found that the plaintiff had also committed a fundamental breach of the contract (in failing to provide the approximate tonnages referred to in the contract), the defendant had not chosen to terminate the contract and the plaintiff's breach did not undermine its right to terminate the contract as a result of the defendant's breach.

c_2005nsca7.txt

Court of Appeal for Saskatchewan Docket: CACV2845 Citation: Lawson Rees, 2016 SKCA 37 Date: 2016-03-16 Between: Dennis Michael Lawson Appellant (Respondent) And Tamara Ashley Rees Respondent (Petitioner) Before: Ryan-Froslie J.A. Disposition: Application allowed Written reasons by: The Honourable Madam Justice Ryan-Froslie (in Chambers) On Appeal From: DIV 199 of 2015, Saskatoon Appeal Heard: 14 March 2016 Counsel: Karina Jackson for the Appellant Gregory Kuse for the Respondent Ryan-Froslie J.A. I. Introduction [1] The appellant, Dennis Lawson, applies pursuant to Rule 15 of The Court of Appeal Rules for an order staying execution of spousal support arrears created as result of an interim order. That interim order provided ongoing spousal support for Mr. Lawson’s wife, the respondent, Tamara Rees, in the amount of $10,000 per month; gave Ms. Rees exclusive possession of the family home; provided for shared parenting of their son and awarded child support to Ms. Rees of $2,726 per month. Mr. Lawson has appealed only those portions of the interim order relating to spousal support and exclusive possession of the family home. He has made all of the payments required by the order, except for the spousal support arrears. Ms. Rees has filed garnishees to collect those arrears. [2] The order for spousal support was made in the face of written agreement, pursuant to which Ms. Rees gave up her rights to spousal support. The parties were married on February 3, 2012, but had lived together since June 2010. They separated in March 2015. They have one child of their relationship who is three years of age. Ms. Rees has second child from another relationship who resides with her. The Chambers judge found Mr. Lawson’s income for child support purposes to be $349,993 per annum. Ms. Rees was unemployed. [3] The application leading to the interim order was heard on July 22, 2015. The Chambers judge did not render his decision until January 20, 2016. He ordered Mr. Lawson to pay spousal support to Ms. Rees commencing August 1, 2015. Accordingly, Mr. Lawson was in arrears of spousal support from the time the order was rendered. [4] Even though Ms. Rees was living in the family home, there was evidence, which the Chambers judge accepted, that Mr. Lawson was making significant payments with respect to that home to cover the mortgage, taxes, insurance and utilities ($4,476 per month). At para 59 of his judgment, the Chambers judge concluded: Therefore am ordering interim spousal support payments of $10,000 per month commencing August 1, 2015. Since the petitioner will be expected to pay all the bills associated with the matrimonial home in which she is living out of this amount except for the house insurance, and in August, September and October 2015 the respondent paid the bills for the matrimonial home, in each of those three months his spousal support payment will be $5,524 ($10,000 $4,476). As he stopped paying the bills for the family home at the end of October 2015 except for the house insurance, his November payment and all payments thereafter will be $10,000 per month until further court order. [5] Mr. Lawson contends there was no evidence to support the Chambers judge’s finding that he stopped paying the bills for the family home at the end of October 2015 and that that in fact was not the case. [6] Mr. Lawson now seeks stay with respect to the enforcement of the spousal support arrears only. He argues the amount of those arrears are in issue, that he should be credited up to and including January 2016 for his payments with respect to the family home and that there is merit to his appeal both with respect to Ms. Rees’s entitlement to and quantum of interim spousal support given the brief duration of the marriage (three years) and the prenuptial agreement signed by her. Mr. Lawson is concerned that if he is successful on his appeal, Ms. Rees would have no ability to repay any spousal support to him. He argues Ms. Rees had no income at the time of the application and that the main asset subject to division, pursuant to The Family Property Act, SS 1997, F-6.3, is the family home. That home was valued by Mr. Lawson in his property statement as of the date of application at $700,000, but its net value after payment of the mortgage ($566,718.08) and the homeline ($93,250) is only $40,000. Against Ms. Rees’s share of the family home would have to be credited the $25,000 she took from the line of credit after the separation. III. analysis [7] Rule 15(1) of The Court of Appeal Rules provides that the service and filing of notice of appeal does not stay the execution of an order for spousal support. Pursuant to Rule 15(2), judge of this Court has the power to give directions with respect to staying proceedings. [8] The principles pertaining to applications to lift stay of proceeding are well-settled. In making decisions with respect to such applications, the Courts objective is to prevent injustice and to ensure the results are as fair and equitable as possible. As stated by Lane J.A. in Ochapowace First Nation Araya (1994), 1994 CanLII 4598 (SK CA), 123 Sask 311 (CA) at para 11: The purpose [of lifting stay] is to minimize prejudice pending the appeal and to balance the competing interests of the respondent who has been successful against those of an appellant who ought not to be prejudiced simply by appealing. In my view, the same objectives apply when imposing stay, namely, to prevent injustice, to ensure the result is as fair and equitable as possible for all sides, to minimize prejudice and to balance the competing interests. [9] In this case, am satisfied stay should be imposed with respect to the enforcement of the spousal support arrears created by the interim order. First, there is an arguable issue that the Chambers judge’s conclusion that Mr. Lawson’s payment of expenses pertaining to the family home ceased after October 2015 was not supported by the evidence before him. Second, there is also an arguable issue with respect to the effect of the written agreement on the granting of interim spousal support and the quantum of that support given the circumstances of the parties, including their incomes, expenses, financial obligations (payment of family debt) and the fact they share custody of their son. Third, if the order is enforced, Mr. Lawson may be prejudiced. This is so because Ms. Rees’s means are very limited and thus there is a real possibility she would not be able repay any “overpayment” of spousal support. Fourth, Ms. Rees would not be unduly prejudiced by the imposition of stay as Mr. Lawson is paying ongoing support (spousal and child) of $12,726 per month and Ms. Rees, by her own admission, has taken $25,000 from the line of credit. Fifth, the imposition of stay with respect to only the spousal support arrears balances the competing interests at stake in the appeal. IV. conclusion [10] Mr. Lawson’s application to impose a stay with respect to enforcement of the retroactive spousal support arrears created by the January 20, 2016 interim order is allowed. That stay shall remain in place until the hearing of the appeal. To be clear, the stay does not affect ongoing spousal support payments or their enforcement. [11] Costs with respect to this application shall be left to the panel hearing the appeal. “Ryan-Froslie J.A.” Ryan-Froslie J.A.

HELD: The application was allowed and the stay of the enforcement of retroactive spousal support was granted. There was an arguable issue with respect to the chambers judge’s conclusions that the appellant had stopped paying the household expenses, the effect of the written agreement on the granting of interim spousal support, and the quantum of the support. If the order was enforced, the appellant would be prejudiced. The respondent’s means were limited and there was a real prospect that she would be unable to repay any overpayment of spousal support.

d_2016skca37.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Thomas E. Pekar, Executor of the Estate of Jane Mitchell, deceased v. Alfred Smithers and Keith B. MacRae, Executors of the Estate of John Donald Mitchell, deceased, 2003NSSC223 Date: 20031114 Docket: 196592 Registry: Halifax Between: Thomas E. Pekar, Executor of the Estate of Jane Mitchell, deceased v. Alfred Smithers and Keith B. MacRae, Executors of the Estate of John Donald Mitchell, deceased Respondents Judge: The Honourable Justice Frank Edwards Heard: October 30, 2003, in Halifax, Nova Scotia Written Decision: November 14, 2003 Counsel: Roberta J. Clarke, Q.C., for the Applicant Robert G. Belliveau, Q.C. for the Respondents David G. Coles, Q.C. and Nicole E. Godbout, for the surviving children and certain grandchildren of the Testator By the Court: [1] This is an application for the interpretation of the Last Will and Testament of John Donald Mitchell, and specifically to determine the entitlement of the Estate of Jane Mitchell under the Will pursuant to Section 31 of the Wills Act, RSNS 1989, C 505. [2] Facts: The Applicant, Thomas Pekar (“Tom”) is the widower of Jane Mitchell (“Jane”), who died on November 8, 1999, in Ontario where she was resident. Tom is the Executor and Trustee named in her Will dated December 21, 1991. Tom is the sole beneficiary under Jane’s Will (excepting her jewellry and personal clothing). Jane’s Will was admitted to probate in the Superior Court of Ontario on November 13, 2002. Jane was a child of John Donald Mitchell (“J.D.”) who died on December 23, 1999, in Halifax, Nova Scotia. Jane was survived by three children, all of whom are still living. [3] J.D. left Will dated January 6, 1994, which was admitted to probate on February 1, 2000. The Will was prepared on a pre-printed stationer’s form with handwritten portions indicating the disposition of J.D.’s assets. It appears that from time to time after the original date of the Will, J.D. made attempts to make changes in his Will, but these were not properly executed and witnessed. [4] In particular, J.D. provided in the fourth paragraph of the Will as follows:“I Devise and Bequeath the Real and Personal Estate of which I may die possessed, in the manner following, that is to say:-1. My following assets are to be sold and proceeds divided among my children, Jane, Nancy, Heather, Richard, Greg: a) Bank accounts. b) Cash, stock, bonds and the contents of my trading account at Midland Walwyn, together with any and all other investments. 2. Before division of Item 1, give the following [cash bequests] ... 9. My personal effects, guns, books, paintings, pictures, watches, medals, furniture etc., are to be given in accordance with List attached. 11. All of the inheritances which leave to my children and grandchildren and Maureen Banyard belong solely and absolutely to them and is not to form part of matrimonial assets.” (underlining in original) [5] The list attached to the Will indicates several items to go to Jane, including “Stone Cabin” pen and ink sketch, Chalk on velvet paintings from Nepal, vases owned by Annie Crockett Mitchell, Mother’s drop leaf table, as well as the first choice from among list of items to be allotted by choice. [6] The Respondents, Alfred Smithers and Keith McRae are the Executors and Trustees appointed under J. D.’s Will. The surviving children of J.D., namely Nancy Smithers, Richard Mitchell, Greg Mitchell and Heather Leet also appeared by their counsel. [7] Issue: Do the gifts to Jane under J. D.’s Will lapse because she predeceased him? [8] The Law: The general rule is that where beneficiary or legatee predeceased the testator, the gift will lapse, and will fall into the residue of the estate. will may of course express an alternate gift should this occur. [9] This general statement of law is modified by statute. In particular, the statutory provisions of the Wills Act, R.S.N.S. 1989, c. 505 have application in such an instance. Section 24 provides that “Unless contrary intention appears by the will...”, failed devise of real property passes into the residuary devise under the will. Section 31 of the Wills Act provides for the situation where “close relative” to whom testator has left real or personal property dies within the lifetime of the testator. It states: “Where any person, being child or other issue of the testator to whom any real or personal property is devised or bequeathed for any estate or interest not determinable at or before the death of such person, dies in the lifetime of the testator leaving issue and any such issue of such person are living at the time of the death of the testator, such devise or bequest does not lapse, but takes effect as if the death of such person had happened immediately after the death of the testator, unless contrary intention appears by the will.” (Emphasis added) [10] In considering what is contrary intention expressed in will, the Courts have considered both cases which fall under s. 24 of the Wills Act and s. 31. Feeney states the following: “The legislation makes the general rule that lapsed gift falls into the residue expressly subject to contrary intention. For instance, will may show contrary intention, the effect of which is that the gift does not lapse or go on the testator’s intestacy, but passes according to the contrary intention expressed or implied by the will. class gift always expresses contrary intention. So, in gift of residue “to my nephews,” if one should predecease the testator then his share will not go on the latter’s intestacy. Under the interpretation that regards class gift to such members of the class who actually survive the testator, the dead nephew’s share will go to increase the shares of the nephews who in fact survive the aunt. The result in the case of class gift is the same whether the class gift is one of specific property or one of residue. Normally, gift given to named persons is not class gift and lapsed share thereof, if it is specific property, falls into the residue; if the lapsed share is one of residue, it passes on intestacy. The situation will usually be the same where the testator does not name the persons but mentions their number, because, generally speaking, such gift is not class gift.” (emphasis added) [11] The distinction between class gift and any other gift is an important one in cases of lapse, and it appears that the Courts have found for or against the characterization of gift as class gift depending on the effect such finding will have. For example, the Court may find gift is class gift to prevent lapse. Such cases will be further considered below. [12] Resort must again be made to Feeney: “The general rule concerning the disposition of lapsed gifts does not operate in the case of property given to group of persons (a class), unless the gifts is separate one to each individual, that is to say, gift persona designata. Thus, where there is gift to class and one or more of them predeceased the testator, it is necessary to determine whether it is gift personae designatae or whether it is class gift.....(I)t will suffice here to say that, generally speaking, gift to group of persons whose number is not mentioned or whose members are not named is to be regarded as class gift, while gift to group whose number is given or whose members are named is to be regarded as gift personae designatae. When the testator gives property to persons as class by referring to them by generic expression such as “children”, “nephews” or “nieces”, he is taken to have expressed contrary intention that will preclude the operation of the general rule about lapse should one or more members of the class predecease him” (emphasis added) [13] The provision of Section 31 which prevents lapse in the case of gift to the child or other issue of testator makes it unnecessary to consider whether testator has expressed contrary intention so as to save gift. It provides for what Feeney calls “fictional survival” of the child or other issue. [14] However, the provision itself, is made subject to any contrary intention expressed in the Will by the testator. In other words, the testator may provide that if the child or other issue predecease him, the gift to the child will pass in some other fashion. As Feeney states: “It is relatively easy matter of drafting to expressly provide for contrary intent. Thus the courts ought not to find contrary intent by conjecture or stretched inference, particularly in cases where the wills are prepared by trained persons and there is not clear expression of contrary intent. What constitutes contrary intent is, however, inevitably question of inference.” (emphasis added) [15] The conclusion therefore is that unless the testator provides otherwise, gift to child A, will not lapse. Where the gift is to a “class” of close relatives, e.g. to “children” if this is a “class gift” it does not fall under this statutory exception. In such a case, the gift falls to the surviving members of the class. This was the finding of the Ontario Court of Appeal in Re Guthrie. [16] However, the point made by Smith, J.A., at page 195-6 of that decision is an important one. “.. wish to point out the very material difference that very slight difference in wording of will may make under the rule thus established. If testator by his will makes gift to all his children, naming them, and some of them die in his lifetime, leaving children who survive the testator, the share that those so dying would have taken goes to their representatives under s. 37 of the Wills Act; but, if the gift is to all his children without naming them, all goes to the children of the testator who survive him, and the above section of the Wills Act does not apply. The distinction is founded on the law of lapse. In the former case there is gift to the individual children by name, and there is lapse as to children dying in the testator’s lifetime, whereas in the latter case, as the will speaks from the death of the testator, the gift is to those of the class only who survive him, so that there is no lapse because there was no gift whatever to the children dying in his lifetime.” (emphasis added) [17] We must return therefore to the question of whether the gift is class gift. In referring to the leading case of Kingsbury v. Walter, [1901] A.C. 187, Feeney says: “In the course of the judgments, Lord Davey defined class gift as follows: ‘[P]rima facie class gift is gift to class, consisting of persons who are included and comprehended under some general description and bear certain relation to the testator...it may be none the less class because some of the individuals of the class are named.’ ... The problem is to determine whether the testator was group-minded or individual -minded; whether the property was given to be share by all persons falling within the general or generic description and who are alive at the testator’s death ...; or whether it was given to be share only by individuals answering the general description at the time the testator made his will, so as to exclude anyone not then alive. In the latter case, the gifts are treated as gifts to individuals and, potentially, lapse can apply. As general rule, if the will-maker has named the individuals in the group or has mentioned their number, then prima facie, the gift is not class gift but gift personae designatae. However, as Lord Davey pointed out, gift may still be class gift even though the testator has included or excluded members of the class by name. In Snyder, where the will not only named the members of the class but also mentioned their number, the gift was held to be class gift, at least for the purpose of avoiding lapse. In the Koleniec decision, the court indicated that those cases including class gift with named beneficiaries were limited to instances where the named persons consisted of all the potential members of the class.” (emphasis added) [18] In Re Brush 1942 CanLII 94 (ON SC), [1943] D.L.R. 74 (Ont. H.C.), the testator left all of his real and personal estate “equally among my three daughters -Lina- Mabel and Beatrice”. His will was prepared on printed stationer’s form and he did not insert anything in the clause disposing of the residue. Unfortunately, two of his daughters were witnesses to the Will which made the gifts to them void. The Court concluded that this was not class gift, and Urquhart, J. stated at p. 80: “Having regard to the above authorities it seems to me that the testator in our case in planning his will had not in mind his three daughters as class. If he had, he would have merely said ‘I give....to my daughters ‘share and share alike,’ or something of that sort. In my opinion he had in his mind the three daughters as individuals, and the provision for them is the same as if he had said ‘I give to Lina, Mabel and Beatrice who are my three daughters.’ The case satisfies two of the exceptions to the class rule, namely, that the number of beneficiaries is given and that the names of such are given. [19] In the Nova Scotia case Re Carter Estate (1991), 1991 CanLII 4218 (NS SC), 109 N.S.R. (2d) 384 (T.D.), aff’d (1993), 1993 CanLII 3164 (NS CA), 120 N.S.R. (2d) 259 (C.A.), Davison J. found class gift and noted “There was no reference in the will to the number of (sic) the names of the brothers and reading the whole of the will would suggest the residue was to go to ‘class’.” (emphasis added) Thus he appears to have acknowledged that reference to the names of the brothers in that case would have resulted in different conclusion. [20] In Carter, Davison, J. also cited very useful summary of the law. He noted that the principles used in interpretation of wills were considered by the Appeal Division of this court in Re O’Brien (1978), 25 N.S.R. (2d) 262 at 266 where Cooper, J.A. approved of the rules enunciated by Kelly, J. of the Ontario High Court in Re Kirk (1956), 1956 CanLII 409 (ON SC), D.L.R. (2d) 527 at 528: “In my opinion, the first duty of the Court in construing will is to ascertain the intention of the testator from the language used in the will. The proper procedure is to form an opinion, apart from the cases, and then determine whether the cases require modification of that opinion; the Court should not begin by considering how far the will resembles others on which decisions have been given: Re Blantern, Lowe v. Cooke, [1891] W.N. 54. There are certain rules of construction to which Judge ought to adhere, viz: (1) To read the will without paying attention to legal rules: per Lord Davey in Comiskey v. Bowring-Hanbury, [1905] A.C. 84 at p. 89; (2) to have regard not only to the whole of the clause which is in question, but to the will as whole, which forms the context to the clause: per Lord Birkenhead L.C. in Lucas-Tooth v. Lucas-Tooth, [1921] A.C. 594 at p. 601; (3) to give effect, if possible, to all parts of the will and so to construe the will that every word shall have effect, if some meaning can be given to it and if such meaning is not contrary to some intention plainly expressed in other parts of the will: see 34 Hals., 2nd ed., s. 252, pp. 197 et seq.; (4) when the Judge thus determines the intention of the testator he should inquire whether there is any rule of law which prevents effect being given to it: Hodgson v. Ambrose (1780), Doug. K.B. 337 at p. 342, 99 E.R. 216.” [21] Justice Davison went on to say that he approved of the approach of Mr. Justice Krever in Re Crawley (1976), 1976 CanLII 852 (ON SC), 68 D.L.R. (3d) 193 which was not inconsistent with the previous authority to which he referred. Krever, J. stated at 195: As to the particular language used by the testator, the following propositions are, in my view, so well established that they need no citation of authority to support them: (1) fair and literal meaning should be given to the actual language of the will. (2) An opinion as to the meaning should be formed first without regard to the cases, which should afterwards be looked at to see if modification of the opinion is required. (3) The ordinary and grammatical sense of the words should be assigned. (4) The words should be given the meaning that was intended by the testator, in view of the context and the surrounding circumstances. (5) natural and ordinary meaning should be given in preference to secondary meaning.” [22] What all of the foregoing, including the Carter case supports is that the Will must be considered as whole to determine whether the testator intended class gift. The general approach to interpretation of will was set out by Rutherford, J. in Re Coughlin (1982), 12 E.T.R. 58 (Ont. S.C. (H.C.J.)) as follows: “The starting point, and in sense the sole duty of the Court in construing the wording of will, is to determine the subjective intention of the testator. If the Court is able to deduce the testator's intention from the will, that will prevail. If the court cannot deduce his intention and only if it cannot‑it adopts the so‑called ‘rules of construction’.” (emphasis added) [23] Mason, J. in Re Allan Estate, [1994] A. J. No. 795 at 15‑16 (Surr. Ct.) says: “...the determination of whether or not there has been class gift intended by the testator(rix), the court should have regard to the following: (a) Is there common tie between the members of the group; that is, are they so described or is it clear that there is recognized relationship having regard to the whole of the will? (b) Do the words used illustrate an intention on the part of the testatrix to deal with the members as group, regardless or (sic) whether or not some or all are named, again having regard to the provisions of the Will as whole and to the particular provisions being addressed? (c) Do the words or context including the surrounding circumstances illustrate an intention that if one of the member were to predecease the testator(rix), the surviving members would take his or her share?” [24] If the Court finds that the intention is not clear from the Will and adopts the “rules of construction”, the principle is that “a court must ascertain the ordinary meaning of the words used in light of the surrounding circumstances”. Rutherford, J. in Re Coughlin cites with approval at p. 62 the definition of “surrounding circumstances” set out by Bayda, JA of the Saskatchewan Court of Appeal and states: “... ‘surrounding circumstances’ as used in these reasons refers only to indirect extrinsic evidence. It has no reference whatever to direct extrinsic evidence of intent, the admission of which is governed by different set of conditions. The former consists of such circumstances as the character and occupation of the testator; the amount, extent and condition of this property; the number, identity, and general relationship to the testator of the immediate family and other relative; the persons who comprised his circle of friends, and any other natural objects of his bounty.” The Court must be careful in determining what is relevant to be considered if it becomes necessary to put itself into the "armchair" of the testator. [25] Analysis: I am satisfied that J.D. intended to make a separate bequest to each individual child. He intended to make the gift personae designatae rather than a class gift. am sure that this interpretation is in accord with fair and literal meaning of the actual language of the will. J.D.’s Will does identify the class (i.e. “children”) but he also identifies the members of that class by naming each of his five children. By doing so, he effectively stated that he was leaving his assets to “my child Jane, my child Nancy, my child Heather, my child Richard, and my child Greg. Obviously, the latter method would have been more cumbersome and unnatural method of conveying the same thought. By constructing the clause in the manner he did, J.D. was simply leaving no doubt as to which Jane, Nancy, Heather, Richard or Greg he was referring to. [26] bequest to the named children is in contrast to the gift in the residue clause to “my grandchildren.” The latter is typical class gift as the grandchildren are not named. Only the survivors of that class, or those added (if any) between the making of the Will and J.D.’s death, will inherit. [27] I am unable to discern a “contrary intention” in J.D.’s Will. Counsel have urged me to find that Clause 11 does describe contrary intention. In that clause, J.D. underlined the words “solely and absolutely”. As noted earlier, Clause 11 reads as follows: “11. All of the inheritances which leave to my children and grandchildren and Maureen Banyard belong solely and absolutely to them and is not to form part of matrimonial assets.” [28] The underlining of the two words solely and absolutely and the direction that such inheritances “is not to form part of matrimonial assets”, it is argued, shows that he does not want his property passing outside his bloodline (except to his companion Maureen Banyard). would have to venture into “conjecture or stretched inference” to accept such an argument. It was common ground among counsel that J.D. was familiar with divorce and its consequences regarding matrimonial property. heard evidence that at least two of his children had been divorced. am satisfied that Clause 11 was J.D.’s attempt to avoid such consequences. do not believe that J.D. considered the possibility of child predeceasing him when he wrote Clause 11. Indeed, J.D. did not have such an event in mind when he wrote any part of the Will. Jane’s death was shock. Six weeks later, J.D. was dead. In those circumstances, am not surprised that J.D. did not take immediate steps to redraft his Will. [29] If Jane had survived J.D., she would have inherited her share of his estate “solely and absolutely”. Accordingly, she could have bequeathed her inheritance to her husband, the Applicant, and no one could have taken issue with that. Because of the operation of Section 31, that is exactly the situation which pertains today. Jane’s estate is entitled to her share just as if she had died “immediately after” her father. [30] Conclusion: J.D.’s intention is apparent from the Will itself. There is no need to resort to the rules of construction and assess the words of the Will in light of the surrounding circumstances. would note that, even if had done so, the result would be the same. Jane’s estate is entitled to Jane’s share under J.D.’s Will. [31] The Applicant is entitled to his costs in the amount of $2,500.00 plus reasonable disbursements to be taxed: J.D.’s estate will pay one half of the costs and disbursements. The children and grandchildren represented by Mr. Coles will be jointly and severally responsible to pay the other half. Order accordingly.

The testator had prepared his own Will on a pre-printed form and left his assets to his children, whom he then proceeded to name. One of the children predeceased the testator and an application was made for an interpretation of the Will. the gift to the deceased child did not lapse; her estate is entitled to it. The general rule that a lapsed gift falls into the residue is expressly subject to any contrary intention appearing in the will; a class gift always expresses such a contrary intention. Where the gift is to a class of close relatives (e.g. to children), if this is a class gift it does not fall under this statutory exception. In such a case, the gift falls to the surviving members of the class. This case satisfied two of the exceptions to the class rule, namely, that the number of beneficiaries was given and that the names of such were given. The gift was not a class gift but rather a separate bequest to each individual child and no contrary intention was discernible in the Will.

d_2003nssc223.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA Date: 20060124 Between: Docket: 1145 R.M. of Chaplin No. 164 and Farm Credit Canada Coram: Bayda, C.J.S., Lane Smith, JJ.A. Counsel: Tyler McCuaig for the R.M. of Chaplin No. 164 Joel A. Hesje, Q.C. for Farm Credit Corporation Appeal: From: Q.B. No. 122 of 2003, J.C. Moose Jaw Heard: November 22, 2005 Disposition: Dismissed Written Reasons: January 24, 2006 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Chief Justice Bayda The Honourable Mr. Justice Lane Smith, J.A. [1] This is an appeal brought by the R. M. of Chaplin No. 164 (hereafter “the R.M.”) from a judgment of the Court of Queen’s Bench determining that a mortgage held by the R.M. was subordinate to a mortgage held by the respondent, Farm Credit Canada (hereafter “FCC”), even though the R.M. mortgage was registered before the mortgage of FCC. The R.M. had agreed with the mortgagor that its mortgage would be subordinate to that of FCC. The appeal raises the application of the priority provisions of The Land Titles Act, 2000, S.S. 2000, c. L-5.1 ("LTA"), and, in particular, the application of s. 54 of that Act. [2] Mainline Pulse Inc. (“Mainline”) was incorporated and developed to operate specialty crop processing plant in Chaplin, Saskatchewan on the site of former Saskatchewan Wheat Pool elevator located on railway right-of-way owned by Canadian Pacific Railway (“the CPR”) and leased to the Wheat Pool. On July 1, 2001, Mainline entered into lease agreement with the CPR in relation to this land. Around September 12, 2001 Mainline agreed to purchase the elevator from the Wheat Pool and to purchase the land from the CPR. Because this required subdivision of the land owned by the CPR, Mainline continued to lease the land from the CPR until the subdivision could be completed. Following subdivision of the land, title to the newly created surface parcel was registered in the name of Mainline on January 18, 2002. [3] The construction of the processing plant was largely financed through loan of $3,125,000 provided to Mainline by FCC. To secure this loan, FCC and Mainline entered into leasehold mortgage in favour of FCC dated July 26, 2001 and registered in the Land Titles Office on September 20, 2001 against the subject land, then owned by CPR. At the same time, fee simple mortgage was executed, but not registered, as the land had not yet been subdivided and Mainline did not yet have fee simple interest. The leasehold mortgage continued as first registered interest against the new fee simple title subsequently issued to Mainline, but FCC's fee simple mortgage was not registered until April 24, 2002. This second mortgage secured the same monies advanced by FCC to Mainline as was secured by its leasehold mortgage. [4] In the meanwhile, on August 1, 2001, the R.M. and Mainline executed Grant Agreement outlining the terms upon which financing in the maximum sum of $150,000 was to be provided to Mainline by the R.M. This agreement provided in part as follows: The Rural Municipality of Chaplin ("R.M.") has approved the application of Mainline Pulse Inc. (the "Corporation") for grant aid in the maximum sum of $150,000.00 (the "Grant"). Set out below are the terms and conditions upon which the R.M. is prepared to make the grant to the Corporation. Security As security for the payment of all amounts required to be paid under this Grant Agreement and the performance of all of the Corporation's obligations under this Grant Agreement, the Corporation shall provide the security more particularly described in the attached Schedule "A" Security (the "Security") and such Security shall, among other things, mortgage and grant security interest in all the Corporation's real or personal property. The R.M. security shall be subject to the following: a) Farm Credit Corporation's security, the primary lender; b) CIBC's security, who are providing the operating money. [Appeal Book, pp. 62a-63a] Schedule "A" to the agreement provided in part as follows: The Corporation shall provide the following security pursuant to Section of the Grant Agreement, in form and substance satisfactory to the R.M.: 1. The R.M. hereby agrees to postpone in favour of Farm Credit Corporation supplying the primary monies to implement the project in an amount not to exceed $3,125,000.00 and the Canadian Imperial Bank of Commerce regarding its operating loan. [Appeal Book, p. 68a] [5] Subsequently, the R.M. advanced funds to Mainline and secured this loan with fee simple mortgage executed on September 12, 2001. Mainline was registered as the owner of the former CPR land on January 18, 2002 and the R.M. mortgage was registered against Mainline’s fee simple interest in this land on January 28, 2002. [6] The R.M.'s fee simple mortgage was thus registered subsequent to FCC’s leasehold mortgage, but prior to FCC’s fee simple mortgage in the subject land. [7] Paragraph of the R.M. mortgage provided as follows: WHEREAS MAINLINE PULSE INC., company duly incorporated under the laws of the Province of Saskatchewan, having its registered office at #600, 123 2nd Avenue S. Saskatoon, Saskatchewan S7K 7E6 (hereinafter called the "Mortgagor") has agreed to borrow the principal amount of ONE HUNDRED FIFTY THOUSAND ($150,000.00) Dollars from R.M. OF CHAPLIN NO. 164, rural municipality with its registered office at Box 60, Chaplin, Saskatchewan S0H 0V0, (hereinafter sometimes referred to as "the R.M." or the "Mortgagee") pursuant to certain agreement executed by the R.M. on August 1, 2001 and by the mortgagor on May 24, 2001, between the Mortgagor and R.M. (hereinafter, including all amendments thereto from time to time, called the "Grant Agreement"). AND WHEREAS it is condition of the Grant Agreement that the Mortgagor execute this Mortgage for the better securing of the R.M. [Appeal Book, p. 41a] [8] Mainline became insolvent and ceased operations in November, 2003. FCC commenced the action to foreclose its two registered mortgages against the subject land. An issue arose as to whether the R.M. had an interest in the mortgaged land in priority to the interest of FCC. II. The Judgment Below [9] The trial judge held that the leasehold mortgage gave FCC no enforceable rights against Mainline’s fee simple interest in the mortgaged property, reasoning that the transfer of the fee simple title to the land to Mainline by the CPR effectively terminated the lease, leaving no interest to which the leasehold mortgage could attach. [10] However, she found that, despite its registration subsequent to the R.M. mortgage, FCC’s fee simple mortgage had priority to the fee simple mortgage of the R.M. as result of the R.M.’s covenant, in the Grant Agreement, to postpone its security interests to those of Mainline. In coming to that conclusion, she relied substantially on the decision in Royal Trust Co. v. H.A. Roberts Group Ltd., 1995 CanLII 6094 (SK QB), [1995] W.W.R. 305. This case involved mortgage priority dispute between the CIBC and Royal Trust. Although Royal Trust had registered its interest prior to the CIBC interest, Royal Trust had agreed with the mortgagor that its interest would be subordinate to mortgages granted by the mortgagor for certain purposes. CIBC’s interest was said to fall within the subordination clause. Baynton, J. held that the CIBC interest had priority, finding that the subordination agreement effectively displaced the rules in the LTA relating to registration and priority. He commented: [69] The provisions of these statutes do not prevent or preclude the parties from contracting to change the statutory order of priorities between themselves. Postponements of mortgages (i.e. subordination of one security to another), are common in commercial practice and effectively alter the priorities between the parties that would otherwise pertain under the applicable registration system in the jurisdiction. [11] Royal Trust argued that CIBC was barred by the principle of privity of contract from relying on the postponement agreement between Royal Trust and its mortgagor. Baynton J. addressed this argument as follows: [70] CIBC is not privy to the trust deed executed by Roberts and Royal Trust. But in my view CIBC is not attempting per se to enforce the trust deed. Rather it is simply resisting the attempt of Royal Trust to take prior security position to that of CIBC that is inconsistent with what Royal Trust has declared and agreed to in the trust deed respecting the priority of the respective securities. Although no authority was cited to me on this point, doubt that the privity of contract principle can provide litigant with immunity from the consequences of subordination provision he or she has agreed to in writing and that affects the priority of third party's security. [71] This is especially so in cases like the one before me where the subordination provisions were designed to protect the prior position of third party, in this case the banker of one of the parties to the trust deed. Royal Trust knew that third party in the position of CIBC did and would place substantial reliance on such subordination provisions. This lawsuit is to determine the priorities of the respective securities. It is not an action by CIBC to enforce the trust deed. [72] In any event if the principle of privity of contract does apply to this case, the circumstances constitute statutory exception. See Alberta (Attorney General) v. Samuel Doz Professional Corp. 1993 CanLII 7049 (AB QB), [1993] W.W.R. 260 (Alta. Q.B.), and J.E. Coté, An Introduction to the Law of Contract (Edmonton: Juriliber Limited, 1974), at p. 166. [12] The trial judge concluded: [59] I would have to conclude on the basis of the above authorities that the second FCC Mortgage has priority over the R.M. Mortgage, as the R.M. specifically agreed to a postponement in favour of FCC. Third parties are not affected, and the M. should not be permitted to have its interests advanced over those of FCC by virtue only of prior registration. [2005 SKQB 175] III. The Relevant Statutory Provisions [13] The following provisions of the LTA are relevant: Reliability of title 23(1) person taking or proposing to take from registered owner transfer or an interest in land or dealing with title: (a) is not bound: (i) to inquire into or ascertain the circumstances in or the consideration for which the registered owner or any previous registered owner acquired title; or (ii) to see to the application of the purchase money or any part of the purchase money; and (b) notwithstanding any law to the contrary but subject to sections 18 and 35, is not affected by any direct, implied or constructive notice of: (i) any trust; (ii) any other unregistered interest; or (iii) any unregistered transfer. (2) Knowledge on the part of the person that any trust or other unregistered interest or any unregistered transfer is in existence must not of itself be imputed as fraud. Reliability of interest 24(1) person taking or proposing to take an interest in title or in another interest for the purpose of obtaining priority over any other trust or unregistered interest is not bound to inquire into and, subject to sections 18 and 35, is not affected by any direct, implied or constructive notice of any trust or any other unregistered interest. (2) Knowledge on the part of the person that any trust or other unregistered interest is in existence must not of itself be imputed as fraud. Effect of interest registration 54(1) After an interest is registered and until that interest is exhausted or until the registration of that interest expires, lapses or is otherwise discharged from the land titles registry in accordance with this Act: (a) the title on which that interest is based and any title derived from that title remains subject to that interest; and (b) any supporting interest on which that interest is based remains subject to that interest notwithstanding any assignment of the supporting interest. (2) Subject to subsections (5) and (7), registration of an interest constitutes notice of the interest to third parties and gives the interest holder priority over third parties in accordance with section 27. (3) Any interest registered pursuant to subsection 53(1) is only effective according to the terms of the instrument or law on which the interest is based and is not deemed to be valid through registration. (4) No registration of an interest is effective if: (a) the application for registration of the interest was not eligible for submission pursuant to section 50; or (b) the instrument on which the interest is based was not executed before the interest was registered. (5) With respect to registration of an interest mentioned in clause 50(1)(a) or (c), the notice and priority mentioned in subsection (2) apply only for the rights expressly: (a) described in the application; or (b) described in an attachment to the application. (6) Where an attachment is provided pursuant to clause (5)(b) or by an amendment to the registration, the attachment displaces the description of the interest in the application as notice of the interest to third parties from the time the attachment is provided in an application for registration. (7) The registration of an interest mentioned in clause 50(1)(b) is not effective unless any form prescribed pursuant to the Act or Act of the Parliament of Canada creating the interest is provided as an attachment to the application. (8) With respect to an interest mentioned in clause 50(1)(b), the notice and priority mentioned in subsection (2) is for the interest as described in the application to the extent that the interest is defined by the Act or Act of the Parliament of Canada, whether or not an attachment, other than the attachment mentioned in subsection (7), is provided. [14] The appellant argues that the decision of the trial judge is inconsistent with the priority provisions of the LTA, and that permitting the respondent to enforce the covenant to postpone contained in the Grant Agreement between the appellant and Mainline violates the principle of privity of contract. It concedes that, at the time its mortgage was created, it had full knowledge of the respondent’s prior in time, but as yet unregistered, security interest in Mainline’s prospective fee simple interest in the subject land, and that it therefore never expected to be able to enforce its security interest in the subject land in priority to the much larger claim of the respondent. It argues, however, that knowledge of prior but unregistered interest is irrelevant to the priority obtained by prior registration, absent fraud, which is not alleged in this case. [15] On the question of privity of contract, the appellant argues that its situation is distinguishable from that described by Baynton J. in Royal Trust, for, in the instant case, the respondent did not even know about, and certainly did not rely upon, the covenant in the Grant Agreement between the appellant and Mainline, when it advanced funds to Mainline. V. Analysis and Conclusion [16] It is our view that it is not in this case necessary to consider whether the priority provisions of the LTA are, as general rule, overridden by commercial postponement agreements in mortgages, or whether reliance by the competing security holder is necessary in order to displace the doctrine of privity of contract in relation to covenant to postpone, for we consider the matter to be governed by consideration of the nature of the interest created by the R.M. mortgage, in light of s. 54(3) of the LTA. [17] As cited above, s. 54 (3) provides as follows: 54(3) Any interest registered pursuant to subsection 53(1) is only effective according to the terms of the instrument or law on which the interest is based and is not deemed to be valid through registration. [18] In effect, registration, while arguably conclusive on the issues of notice and priority, does not and cannot alter the nature of the legal interest granted by the instrument registered. In the present case, the mortgage instrument states that it is pursuant to the prior Grant Agreement executed by the parties. This agreement, in turn, clearly provides that any security granted by Mainline to the R.M. is subject to the prior security interest of the respondent to the extent of $3,125,000. In effect, Mainline granted to the R.M. a mortgage of a limited interest, viz., Mainline’s equity of redemption after any mortgage held by the respondent, to the extent of $3,125,000. The appellant admits that it was never intended, as between itself and Mainline, that it would obtain a security interest in priority to that of the respondent. Mainline granted a mortgage to the appellant subject to the prior interests, as defined, of the respondent and of CIBC. The appellant is therefore, in effect, seeking to increase the interest actually accorded to it by the debtor by relying on its prior registration and the priority provisions of the LTA. [19] The decision of the Supreme Court of Canada in St. Mary’s Parish Credit Union v. Trademarks Ball Lumber Co., 1961 CanLII 62 (SCC), [1961] S.C.R. 310 is instructive. In that case, one Zirtz borrowed money from the appellant credit union to build his house and assist him in his business. He executed, in favour of the credit union, “pledge of title” by way of equitable mortgage on his house property to secure the advance of $2,000 “and any moneys borrowed” by Zirtz from the appellant. Another $4,400 was subsequently lent to Zirtz by the credit union. The duplicate certificate of title for the land was deposited with the appellant pursuant to this agreement. [20] Subsequent to all of these transactions, Zirtz made purchases of lumber and other building supplies from the respondent and became indebted to it for the purchase price. The respondent asked Zirtz to give charge and mortgage “on his equity in the land” for the sum of $6,000. This was conceded not to be registrable mortgage under The Land Titles Act of Saskatchewan in force at the time, and it, too, was considered an equitable mortgage. The Court accepted that at the time of the granting of this second mortgage, Zirtz told the respondent that there was an existing mortgage against his home for $6,400 in favour of the appellant and that they held the duplicate certificate of title. He also told them the building was worth $15,000 and that he could only use his remaining interest in the property to secure his debt to them. The respondent then filed caveat claiming an interest under the equitable mortgage. [21] Zirtz then executed legal mortgage in favour of the appellant. At the time of registration of this document, the appellant became aware of the respondent’s caveat. Each party then sought declaration that its charge against the land had priority. The trial judge held in favour of the respondent, and this judgment was upheld by the Saskatchewan Court of Appeal, holding: they [the respondent] knew that the title to the property was clear but for three mechanic’s liens, two of them filed by the plaintiff itself,.... They knew that any equitable mortgage held by the Credit Union was unregistered and that it passed no interest until registered and that therefore the equity that Zirtz had to offer as security was the full equity as shown by the title…. [p. 314] [22] The Supreme Court disagreed, on the following analysis, pertinent to the case before us: Up to the time of the filing of the respondent’s caveat the situation was that both the appellant and the respondent had equitable mortgages upon the land. That of the appellant was prior in time to that of the respondent and ranked first in equity. Neither mortgage was in registrable form under the provisions of The Land Titles Act, but the appellant had possession of the duplicate certificate of title for the land. In addition to priority as to time, it seems to me that the appellant’s mortgage ranked ahead of that of the respondent because of the form of the latter mortgage. It appears clear, from the terms of that document and in the light of the evidence, that it was intended to charge, not the whole of the owner’s interest in the land, but only the equitable interest which remained in Zirtz after he had granted to the appellant the earlier mortgage. The respondent’s mortgage, which was drawn by its solicitors, was not drafted as registrable mortgage under The Land Titles Act, but only purported to charge “his equity” in the land. What was that equity? It was the interest which he retained in the land, subject to the appellant’s equitable mortgage. It is true that the appellant’s interest was an unregistered interest, but it did confer rights on the appellant and such rights were enforceable against Zirtz. Several cases in this Court have recognized the validity of equitable interests in lands which are subject to the Torrens system of titles and which are not themselves registrable interests under that system…. [pp. 315-16] In the present case the two equitable mortgages which are in competition are not the same. That of the respondent, by its terms, was expressly limited to charge upon “my equity”. It was, therefore, mortgage of only limited interest in the land. The filing of the caveat gave notice of that interest in the respondent, and any one dealing thereafter with the land could do so only subject to that interest of the respondent, but the filing of the caveat could not and did not increase the extent of the respondent’s interest in the land. It could not create charge upon more than that which had been charged by Zirtz under the terms of the instrument itself. [pp. 319-20] Stated at its highest, the respondent’s position after registration of the caveat could only be the same as if the equitable mortgage itself could have been and had been registered as an instrument under the Act. According to the tenor and intent of that document it only constituted mortgage upon partial interest in the land. For these reasons, therefore, do not agree that, by virtue of the filing of its caveat, the respondent obtained, under the provisions of The Land Titles Act, priority over the prior equitable interest of the appellant. [p. 320, Italics added] [23] The facts in the present case are distinguishable in that the mortgage created in favour of the R.M. in this case was, indeed, registrable mortgage, and, moreover, it did not, on its face, limit the interest mortgaged to the “equity” of the mortgagor. It is therefore arguable, in the case at bar, that, had third party assumed the registered interest of the respondent, that party would have been entitled to assume that the R.M. mortgage charged the unlimited fee simple interest of the mortgagor and was not subject to any unregistered security interest, whether or not such an interest was prior in time or in equity. We do not have to decide this issue, as no third party interest was created or is before us. [24] In other respects, however, and as between the immediate parties to these transactions, the situations are equivalent. The Grant Agreement is cited in the first paragraph of the R.M. mortgage and the mortgage is clearly intended to be pursuant to the terms of that agreement. The Grant Agreement, in turn, clearly sets out the parties’ intention that the mortgage be subject to the prior security interest of the respondent. The appellant candidly admitted that this was its understanding and its expectation at the time the documents were executed. Thus, the appellant could not, simply by registering the mortgage, create an interest greater than that to which it was entitled by its agreement with Mainline. [25] For these reasons, we concur in the trial judge’s conclusion that the fee simple mortgage of the respondent has priority over the fee simple mortgage of the appellant. The appeal is accordingly dismissed with costs to the respondent. DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of January A.D. 2006. concur BAYDA C.J.S.

This is an appeal brought by the R.M. from a judgment of the Court of Queen's Bench determining that a mortgage held by the R.M. was subordinate to a mortgage held by the respondent Farm Credit Canada (FCC), even though the R.M. mortgage was registered before the mortgage of FCC. The R.M. had agreed with the mortgagor that its mortgage would be subordinate to that of FCC. The appeal raises the application of the priority provisions of The Land Titles Act, 2000 and in particular the application of s. 54 of the Act. HELD: The mortgage of the respondent has priority over the mortgage of the appellant. The appeal is dismissed with costs. 1) It is not necessary in this case to consider whether the priority provisions of the Land Titles Act are overridden by commercial postponement agreements in mortgages, or whether reliance by the competing security holder is necessary in order to displace the doctrine of privity of contract in relation to a covenant to postpone, for the court consider the matter to be governed by a consideration of the nature of the interest created by the R.M. mortgage in light of s. 54(3) of the Act. 2) Registration does not and cannot alter the nature of the legal interest granted by the instrument registered. In the present case the mortgage instrument states that it is pursuant to the prior Grant Agreement executed by the parties. This agreement, in turn, clearly provides that any security granted by Mainline to the R.M. is subject to the prior security interest of the respondent to the extent of $3,125,000. In effect, Mainline granted to the R.M. a mortgage of a limited interest, being Mainline's equity of redemption after any mortgage held by the respondent, to the extent of $3,125,000. The appellant admits that it was never intended, as between itself and Mainline, that it would obtain a security interest in priority to that of the respondent. Mainline granted a mortgage to the appellant subject to the prior interests, as defined, of the respondent and of CIBC. The appellant is therefore, seeking to increase the interest actually accorded to it by the debtor by relying on its prior registration and the priority provision of the Act.

5_2006skca7.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 54 Date: 20060517 Between: Docket: 1064 Belterra Corporation and Ken Yaganiski Coram: Cameron, Gerwing Sherstobitoff JJ.A. Counsel: Jennifer D. Pereira for the Appellant Heather J. Laing for the Respondent Appeal: From: 2004 SKQB 448 (CanLII) Heard: May 17, 2006 Disposition: Dismissed (orally) Written Reasons: May 19, 2006 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Madam Justice Gerwing The Honourable Mr. Justice Sherstobitoff CAMERON J.A. [1] It will not be necessary for us to call upon counsel for the respondent, Ken Yaganiski, for each of us is of the view that, even if his conduct constituted breach of the clause of the contract prohibiting him from soliciting the customers of the appellant, Belterra Corporation, Belterra failed to prove any loss attributable to the breach. [2] In light of the view we take of the matter, it is not necessary for us to decide whether Mr Yaganiski’s conduct amounted to a breach of contract, although on balance we incline to the opinion it did. Assuming it did (which is to put the case for the appellant at its highest), Belterra has not satisfied us that it suffered any loss attributable to the breach. We are not satisfied of this, having regard for the following facts: (i) effective July 1, 2000, Mato Corporation independently terminated its distributorship agreement with Belterra, meaning Belterra could no longer obtain Mato products for sale to its customers: (ii) in the ensuing year Belterra was able to sell existing inventory of Mato products to its customers at profit, which in fact it did: (iii) there is no evidence establishing that Belterra was unable to sell all of its existing inventory to its existing customers during the year, and no evidence that it was unable to do so by reason of anything the respondent did or might have done in breach of his contract with Belterra. [3] Belterra’s loss, so to speak, consisted of its inability to continue to obtain Mato products and sell them to its customers at profit. But this loss stemmed from the termination of its distributorship agreement with Mato, not from anything the respondent did. As the trial judge found, the termination of the distributorship was unconnected to the respondent. [4] Hence, we have decided to dismiss the appeal. The appeal is dismissed with costs, such costs to be taxed as usual on the basis of double column 5 of the Court of Appeal Tariff of costs.

The appellant appeal arguing that the respondent's conduct in soliciting the customers of the appellant constituted a breach of contract. HELD: Appeal dismissed orally. Even if the respondent's conduct constituted a breach of the clause of the contract prohibiting him from soliciting the customers of the appellant, the appellant failed to prove any loss attributable to the breach. The appellant's loss consisted of its inability to continue to obtain Mato products and sell them to its customers at a profit. This loss stemmed from the termination of its distributorship agreement with Mato, not from anything the respondent did. As the trial judge found, the termination of the distributorship was unconnected to the respondent.

b_2006skca54.txt

nan IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 106 Date: August 31, 2016 Information: 37253347 Location: Moose Jaw Between: Her Majesty the Queen and Christine Jasmine Leigh Bigsky Appearing: Curtis Wiebe For the Crown Suzanne Jeanson For the Accused JUDGMENT D. KOVATCH, [1] The accused, Christine Jasmine Leigh Bigsky is charged that on March 23, 2015, she committed an assault on Jennifer Buchanan, contrary to section 266 of the Criminal Code. She is also charged that on the same date she breached probation order by failing to keep the peace and be of good behaviour. [2] The complainant Jennifer Buchanan is child protection worker employed by the Saskatchewan Ministry of Social Services. On the date in question, she enlisted the assistance of the Moose Jaw Police Service so that she could enter the accused’s home, to investigate whether the accused’s children were in need of protection, and if necessary to apprehend those children. After the complainant and police entered the accused’s apartment suite, the accused kicked and hit the complainant. There is no doubt that Ms. Bigsky’s actions could legally constitute an assault. The defence argued that her actions were justified under the common law and provisions of the Criminal Code, on the basis of her defence of property and defence of third person. The defence also argues that the complainant and police subjected the accused to an unlawful and unreasonable search and seizure, and infringed her rights contrary to section of the Charter. The defence asks that the evidence that was obtained following the unlawful entry into the accused’s home be excluded. THE EVIDENCE [3] The defence admitted the identity of the accused and the jurisdiction of the court. It also admitted that on March 23, 2015, the accused was under probation order that required her to keep the peace and be of good behaviour. [4] The complainant, Jennifer Buchanan testified that she is child protection worker employed by the Saskatchewan Ministry of Social Services. She is also an officer appointed by the Minister under section 57(b) of The Child and Family Services Act. Between October, 2014 and June, 2015, she was working in Moose Jaw. Her duties included investigating concerns regarding children, apprehending children when necessary, making case plans and working with families within those case plans. In January, 2015, she began working with the complainant. [5] Ms. Buchanan testified that the accused has three children. Further, that the father of those children is one Justin Lerat. [6] Ms. Buchanan testified that at sometime prior to her initial involvement with Ms. Bigsky in January 2015, that Ms. Bigsky’s children were apprehended and were, for period of time, in the care of the Minister of Social Services. She testified that according to the file history, this apprehension of the children and their placement in care was at least partly based on Mr. Lerat having assaulted Ms. Bigsky, and the children having been exposed to domestic violence. She further testified that Mr. Lerat was charged with an assault upon Ms. Bigsky, and that prior to March 23, 2015, he was released on bail with respect to that assault charge. Further, that one of his conditions of bail was that he was to have no contact with Ms. Bigsky. [7] Ms. Buchanan testified that shortly prior to her initial involvement with Ms. Bigsky in January 2015, the children were returned to Ms. Bigsky’s care and that at that time Ms. Bigsky executed parental services agreement. Under the parental services agreement, Ms. Bigsky gave permission to officers of the Ministry to enter her home. She also testified that the children were returned to Ms. Bigsky’s care on the basis that Justin Lerat would not be there with her in the home. The parental services agreement was not filed with the Court, and Ms. Buchanan did not testify that it was condition of the parental services agreement that Mr. Lerat not be in the home. believe and conclude in this case that Ms. Buchanan and other workers directed Ms. Bigsky that Mr. Lerat was not to be in the home, but that this direction was not made part of any parental services agreement or other court order applicable to Ms. Bigsky. will return to the significance of this in due course. [8] Ms. Buchanan testified that following the return of the children to Ms. Bigsky, the Ministry still had ongoing concerns regarding Ms. Bigsky’s care of the children. Officers of the Ministry continued to monitor Ms. Bigsky the children, and the children’s care. She testified that in March 2015, the Ministry interviewed one of the children at the school, and obtained information that Mr. Lerat was in the home. She testified that as of March 23, 2015, she had never met Mr. Lerat. She only had description of him. [9] She testified that on March 23, 2015, she discussed matters with her superiors, and it was decided that she would go to Ms. Bigsky’s apartment suite to investigate. If Mr. Lerat was there, she would have him arrested. She testified that she was not going to the apartment suite to apprehend the children. In order to accomplish all of this, she would follow the common practice. That is, she would take another worker with her, and would enlist the support and assistance of the Moose Jaw Police Service, to conduct the investigation and possible apprehension. [10] Ms. Buchanan testified that she went to the apartment block, and was waiting outside. At this time she saw Justin Lerat on the balcony of Ms. Bigsky’s suite. She said he was smoking. Ms. Buchanan has said that she told the officers that this was Mr. Lerat, and they called to him. Mr. Lerat made no response, but immediately went inside the suite. [11] Ms. Buchanan testified that she and Corporal Mickleborough of the Moose Jaw Police Service approached the patio door of Ms. Bigsky’s suite. They knocked. She could see Ms. Bigsky on the other side of the patio door. However, Ms. Bigsky refused to allow them in. She testified that the police told Ms. Bigsky that she had to allow them in to investigate regarding the children. Further, that if she did not allow them in, they would force their way in. Ms. Bigsky opened the door and allowed them in. They searched for Mr. Lerat but he was not there. She further testified that neither she nor the police had any warrant to enter the home. [12] Ms. Buchanan testified that she then called her superiors to seek further directions. She advised them what had happened. Presumably, this included her belief that Justin Lerat was present but that they did not locate him or arrest him. She was directed to apprehend the children. [13] She then advised Ms. Bigsky that she would be apprehending the children. She asked Ms. Bigsky to dress the children appropriately and supply them with sufficient clothing. Ms. Bigsky became agitated and argumentative. Ms. Buchanan said that she was looking through stack of clothes for children’s clothing when Ms. Bigsky said something like don’t touch my kids things. She said Ms. Bigsky hit her on the shoulder with closed fist. Officer Mickleborough stepped between the two of them, and Ms. Bigsky then kicked Ms. Buchanan in the leg. She said she suffered no injuries from the assault. [14] Under cross-examination Ms. Buchanan testified that she went to the house hoping to arrest Mr. Lerat, not to apprehend the children. She was specifically asked whether she had a warrant under section 13.1 of The Child and Family Services Act, allowing her to enter the home. She said she had no such warrant, and had never utilized a warrant before. She stated that Ms. Bigsky had given them permission to enter the home under the parental services agreement. [15] Ms. Buchanan testified under cross-examination that she looked for clothes in both bedrooms. She also agreed that she went into the kitchen area and searched cupboards, the refrigerator and pantry. She admitted that she did this to see if there were additional reasons to apprehend the children. She also agreed that when she was struck by Ms. Bigsky, she told Constable Mickleborough that she wanted the accused charged. She doubted that she stated she wanted the accused in jail. [16] The next witness called was Corporal Taylor Mickleborough of the Moose Jaw Police Service. He testified that he has been with the force for 16 years. On March 23, 2015, he was called for assistance with child apprehension. He later testified that it was fairly typical or standard practice for police to attend with child protection officers to assist with child apprehensions. He was in full uniform and was accompanied by Constable Scheske. [17] Corporal Mickleborough testified that he parked his police vehicle near the apartment block on the 500 block of Laurier Street West. He was immediately approached by the complainant, Jennifer Buchanan. She advised of her concerns, and that she believed Justin Lerat was present at Ms. Bigsky’s apartment suite. [18] He stated that he went to the door and spoke to the accused, Christine Bigsky. She was reluctant to let him in, but did let him in. He stated she was cooperative, “but not happy”. He said that he did not force his way in. He believed that when they entered the suite Ms. Bigsky was there with one small child and baby. He asked if Justin Lerat was there, and was told that he was not there. They asked to search for Mr. Lerat, and search was conducted. Mr. Lerat was not present and not seen. [19] He stated that he then spoke to Ms. Bigsky, and advised her of the apprehension order. She was quite upset and emotional about this. He spoke to her at some length, attempting to calm her down. At one time, the complainant came into the room and she and the accused immediately began to exchange words. This was upsetting Ms. Bigsky, and causing the situation to escalate. As result, he asked the complainant to leave. [20] Later, the complainant, Ms. Buchanan came back into the room. Ms. Bigsky tried to reach her. Ms. Bigsky tried “an off balance kick”. He stepped between the two women and at that moment Ms. Bigsky tried kind of round house swing that may have made contact with Ms. Buchanan’s arm. He could not say whether this was slap or closed fist. Ms. Buchanan then said that she wanted Ms. Bigsky charged. He asked Ms. Buchanan to leave. He then spoke to Ms. Bigsky, attempting to calm her. He asked her to get some clothes together for the children, and she did that. [21] Under cross-examination, he stated that he has fairly regularly attended to assist with child apprehensions. He indicated that there was no warrant to enter Mr. Bigsky’s apartment suite. He also stated that at no time did he see Justin Lerat. [22] He admitted that Ms. Bigsky did not immediately grant him entry. She was reluctant to let him in. He advised that he said they wanted in and had authority to come in. He stated they needed to come in to ensure the welfare and the safety of the children. However, he could not remember his exact words. He could not say if he advised they would force their way in, if Ms. Bigsky did not open the door. [23] He stated that Ms. Bigsky was very upset, understandably so. He stated that she was questionning the legitimacy of the apprehension, and was frustrated by the fact of the apprehension. In the exchanges between the complainant and the accused, Ms. Buchanan was persistent in saying that she was apprehending, and giving some reasons for the apprehension. Ms. Bigsky was persistent in saying there was no reason for the apprehension, and that should not occur. The argument between the two women was escalating, and he was attempting to keep the peace. He was specifically asked if he recalled Ms. Bigsky telling Ms. Buchanan “don’t touch my kids stuff”. He said he did not recall Ms. Bigsky saying that. [24] Ms. Bigsky then testified in her defence. She stated that on March 23, 2015, she was living in an apartment suite on Laurier Street. On that day police came to her sliding glass doors with the complainant, Jennifer Buchanan. At first, she did not let them in. The police officer asked her to open the door or they would have to forcefully open it. She opened the door for the safety of her children, and allowed them entrance. [25] She stated that she was there with two of her children. Her other child was in school. No one else was there. She further stated that Justin Lerat is her ex, and is the father of her children. He was at the apartment during that day but not when this incident occurred. [26] She testified that the police and Buchanan entered the suite and Ms. Buchanan immediately advised that she would apprehend the children. Ms. Bigsky had said she was very offended by this, as there was no reason for an apprehension. No one had warrant to enter the suite, and she was never presented with any warrant. [27] Ms. Bigsky testified that she was yelling at Ms. Buchanan as she told Ms. Buchanan there was “no reason to apprehend”; “don’t touch my kids things”; and “don’t go in my bedroom”. She said that Ms. Buchanan went all over in the apartment, including searching in the bedrooms and in the kitchen cupboard and refrigerator. She emphatically stated that they weren’t there to search just for Justin Lerat. They were there to apprehend her kids. [28] She indicated that at some point Ms. Buchanan asked her to get jackets and boots for her children, and she did that. Further, there was pile of clothes in the living room. Ms. Buchanan was looking through these clothes, and throwing things around bit. She asked Ms. Buchanan not to dig through these clothes. Ms. Buchanan said something offensive to her, but she could not recall the specific comment. At that time she hit and kicked Ms. Buchanan, but did not hurt her. Ms. Buchanan then immediately said “I’m charging you”. The police officer (Corporal Mickleborough) stated he wouldn’t let Ms. Buchanan press charges. [29] Under cross-examination, Ms. Bigsky said that Justin Lerat was under an order that he was to have no contact with her. Further, that he left just before they came. She stated: “he wasn’t out there.” [30] She was cross-examined on her contact with Ms. Buchanan for the month prior to this incident. She admitted that she and Ms. Buchanan did not get along. She stated that Ms. Buchanan did not listen to her, and was looking for excuses to take the children. She agreed with Mr. Wiebe that Corporal Mickleborough was helpful, and helped her calm down and remain calm. She wasn’t angry with Corporal Michelborough, rather her anger was directed at Ms. Buchanan, because she was apprehending. She admitted that when she hit and kicked Ms. Buchanan, she did so out of anger. She stated she was not thinking about it. [31] Mr. Wiebe suggested to her that Corporal Mickleborough did not tell her that she had to let them in for the safety of the children. She agreed with that. She agreed that at that time she thought she was letting them in to search for Justin. [32] The defence case was closed. Counsel in the court then discussed date for arguments. Defence counsel, Ms. Jeanson had not served any Charter notice. suggested that she may want to consider serving notice and arguing Charter issues. The matter was adjourned and Ms. Jeanson did serve and file Charter notice. When we resumed, advised Mr. Wiebe that would allow him to re-open his case in order that he might present any additional evidence he required to meet the Charter arguments. Counsel advised that they had discussed the matter, and both were of the view that no additional evidence would be presented, and they would simply argue the Charter issues together with the other trial issues. Each side filed some cases and made fairly extensive and very helpful arguments. [33] There was some debate between counsel as to whom was entering Ms. Bigsky’s apartment, and actually conducting the search. In my view, this issue is somewhat relevant to some factual findings to be made by the Court, but not of large legal significance. Ms. Buchanan is an officer appointed by The Child and Family Services Act, and as such has certain powers under that Act. She requested and obtained the assistance of Moose Jaw City Police. Corporal Mickleborough assisted. He is peace officer who has certain powers under the Criminal Code. These two individuals acted together. Very often numerous individuals will be involved in search. One officer is required to have legal authority to conduct the search, and to be the operating mind and directing mind of that search. The others derive their authority from that individual, and act under the instructions of that individual. As result, the most fundamental question here isn’t which officer did what, but whether any officer had the legal authority to conduct the search and take the steps that they did at Ms. Bigsky’s apartment. ISSUE ONE DID THE POLICE HAVE LEGAL BASIS TO ENTER MS. BIGSKY’S HOME UNDER THE CRIMINAL CODE? WAS THE ACCUSED SUBJECTED TO AN UNLAWFUL SEARCH AND SEIZURE CONTRARY TO SECTION OF THE CHARTER? [34] Section of the Charter says: “Everyone has the right to be secure against unreasonable search and seizure.” An individual can agree and consent to search of his private property. consensual search is not generally contrary to this Charter Right. Ms. Buchanan seemed to believe that the Parental Service Agreement gave her authority to enter the home, and she could do that without warrant. In order to allow that, would have to interpret the Parental Service Agreement as providing continuing and indeterminate waiver of constitutional rights. waiver of constitutional rights must be informed and narrowly construed. The Parental Service Agreement could not give Ms. Buchanan an open ended authority to enter the home without permission. [35] Both Ms. Buchanan and Ms. Bigsky testified that the Police informed Ms. Bigsky that she had to open the door and allow them entrance, or they would force their way in. Corporal Mickleborough testified he informed Ms. Bigsky they had authority to enter and that they needed to ensure the welfare and safety of the children. He could not recall his exact words or whether he said they would force their way in. conclude that, at first, Ms. Bigsky was not opening the door and allowing them entrance. It was communicated to her that they had lawful authority to enter, and she had to let them in. She reluctantly opened the door and allowed them to enter. This was a forced consent. It was not a free and willing or informed consent. It was no consent in law. It is clear it was a warrantless search. [36] In the case of Collins, (1987) 1987 CanLII 84 (SCC), SCR 265, Chief Justice Lemaire stated that warrantless search is presumed to be unreasonable and the Crown must establish the search was reasonable on balance of probabilities. He further stated that search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable. [37] begin by observing that Mr. Wiebe argued that Corporal Mickleborough had the lawful authority to enter the suite in order to arrest Justin Lerat. However, Ms. Jeanson pointed out that Corporal Mickleborough did not testify to that effect. Rather, the Corporal said that he was there to assist Ms. Buchanan with the apprehension. This evidence doesn’t conclusively determine or preclude the Court from determining that Corporal Mickleborough was lawfully exercising Criminal Code power. However, it is certainly indicative that Corporal Mickleborough did not believe he had authority under the Criminal Code to act, and that he wasn’t attempting to act under the Criminal Code. [38] More importantly, even if Corporal Mickleborough believed he could enter the suite to arrest Justin Lerat, in my view he would be wrong in that assessment. The case of Feeney, (1997) 1997 CanLII 342 (SCC), SCR 13 establishes that even if an officer had warrant for the arrest of an individual, he would not be entitled to enter private dwelling house to search for that individual and make an arrest. warrant and judicial authorization to enter the premises would be required. The exception to this rule is if an officer is in hot pursuit of an individual, and attempting to make the arrest. However, in this case, Corporal Mickleborough was not in hot pursuit He had not seen Justin Lerat at all that day and had not pursued him to this residence. In my view, this case is very similar to Meier, 2009 SKPC 30 (CanLII). In that case, his Honour Judge Morgan concluded that the police officer unlawfully entered the dwelling house to effect the arrest of Mr. Meier. [39] The result is that I must conclude that Corporal Mickleborough did not have any lawful authority to enter Ms. Bigsky’s apartment suite to effect and arrest of Justin Lerat. He was not exercising criminal law power and his entrance to that suite will be contrary to her section rights, unless that entrance and search is determined to be lawful under some other legal authority. ISSUE TWO WAS THE CHILD PROTECTION WORKER, JENNIFER BUCHANAN, ENTITLED TO ENTER THE ACCUSED’S HOME (WITH THE ASSISTANCE OF POLICE) UNDER THE SASKATCHEWAN CHILD AND FAMILY SERVICES ACT? (A) WHAT IS THE STATUS OR VALIDITY OF THE WORKER’S DIRECTION THAT THE ACCUSED’S COMMON LAW AND FATHER OF THE CHILDREN NOT BE AT THE ACCUSED’S HOME OR WITH THE CHILDREN? [40] begin the discussion under this heading by referring to section 16 of The Child and Family Services Act. The heading for that section is “Protective Intervention Orders”. Section 16(1), (3) and (4) read as follows: 16(1) Subject to subsection (2), where an officer has reasonable grounds to believe that contact between child and another person would cause the child to be in need of protection, the officer may apply to the court for protective intervention order directed to that person. (3) Where, on an application pursuant to subsection (1), the court is of the opinion that contact between child and another person would cause the child to be in need of protection, the court may make protective intervention order containing any terms and conditions that the court considers to be in the best interests of the child, including, without limiting the generality of the foregoing, direction to person named in the order to refrain from any contact or association with the child. (4) Subject to subsections (5) and (6), protective intervention order is effective for any period specified in the order that does not exceed six months. As understand it the situation, no protective intervention order was obtained by the Ministry or any of its workers against Justin Lerat. Rather, the worker or workers involved determined that it might be harmful to the children if Mr. Lerat had contact with them. As result, they counselled Ms. Bigsky to this effect and advised that if Mr. Lerat was involved with them, they could consider the children to be in need of protection and make an apprehension. [41] Clearly, this was the situation and the basis of the concern on March 23, 2015. Ms. Buchanan testified to the effect that she went to the suite on that day to ascertain if Justin Lerat was there, and if so, to have him arrested or to apprehend the children. [42] Under section 16, where the court is satisfied that contact between the child and another person would cause the child to be in need of protection, the court makes an order. It would seem to me that where such an order was made, and where the order is breached in any fashion, the worker would instantly have grounds to believe the child was in need of protection, and apprehension would be justified. [43] But what is the status of simple directive from the worker, when no order is made. would suggest that as matter of common sense, directive cannot have the same force of law as court order. As result, mere breach of directive from the Ministry or its worker does not, ipso facto, establish grounds for apprehension. This need not be fatal and necessarily lead court to conclude that there are no grounds for apprehension. In this case, it was open to the Crown and the Ministry to establish that any contact of the children with Justin Lerat was harmful to the children, and they were immediately in need of protection. But was this established here? In my view it was not. The totality of the evidence is to the effect that Justin Lerat was charged with an assault upon Ms. Bigsky. He was released on conditions of bail that included that he was to have no contact with Ms. Bigsky. On March 23, 2015, Ms. Buchanan believed that he had contact with Ms. Bigsky and in fact was at her apartment suite. father has right of access to his children, and children have right of access to their father. The mere fact that the father had contact with Ms. Bigsky on this date is not sufficient to allow me to conclude that the children were in need of protection or that apprehension was justified on that date merely by reason of him having contact with Ms. Bigsky. The fact that worker had directed that Mr. Lerat was not to have contact with Ms. Bigsky or the children, does not alter that situation. (B) WAS THE CHILD PROTECTION WORKER, ASSISTED BY POLICE, ENTITLED OR EMPOWERED TO ENTER THE ACCUSED’S HOME TO INVESTIGATE THE WELFARE OF THE ACCUSED’S CHILDREN AND APPREHEND THOSE CHILDREN? [44] Section 13.1 of The Child and Family Services Act reads as follows: 13.1(1) justice of the peace or judge may issue warrant pursuant to this section where the justice or judge is satisfied by information on the oath of an officer or peace officer that: (a) there are reasonable grounds to believe that child may be in need of protection; (b) person refuses to give the officer or peace officer access to the child; and (c) access to the child is necessary to determine if the child is in need of protection. (2) In warrant issued pursuant to subsection (1), the justice of the peace or judge may do one or more of the following: (a) authorize an officer or peace officer named in the warrant to enter premises specified in the warrant and to search for the child; (b) require person to disclose the location of the child; (c) require person to allow the officer or peace officer to interview or to visually examine the child or to do both; (d) authorize the officer or peace officer to take the child away from the premises for an interview or medical examination; (e) authorize duly qualified medical practitioner or other health care provider to examine the child. (3) Where an officer is authorized by warrant to enter premises pursuant to clause (2)(a), the officer may be assisted by peace officer in carrying out the powers conferred by the warrant. (4) If child is taken away from premises for an interview or medical examination pursuant to warrant, the officer or peace officer must return the child to person who has right to custody of the child when the interview or medical examination is completed unless the officer or peace officer proceeds pursuant to section 17. (5) An application for warrant may be made in person, by telephone or by any other means of electronic communication. (6) No person shall obstruct any person who is authorized to make an entry pursuant to this section. [45] The complainant, Ms. Buchanan, testified that she did not have warrant to enter Ms. Bigsky’s home, and that she had never before obtained warrant under this section to enter home. [46] What is the purpose and effect of section 13.1? begin by noting that the Feeney decision was decided in 1997, and section 13.1 was enacted in 1999, approximately two years after that decision. In my view, there was realization that the Feeney decision would apply to child protection workers, and prevent them from entering home without warrant to investigate child protection matters and to conduct apprehensions. The Provincial Legislature followed the Feeney decision and the expanded provisions following section 529 of the Criminal Code, by enacting similar provisions allowing for judicial authorization to child protection worker to enter home. Simply stated, section 13.1 was enacted to allow Ms. Buchanan to address the very situation that she was confronted with on March 23, 2015. However, no attempt was made to utilize this section or obtain authorization to enter the home. conclude that Ms. Buchanan had no lawful authority under The Child and Family Services Act to enter the accused’s home. (C) COULD THE WORKER ENTER THE HOME UNDER EXIGENT CIRCUMSTANCES? WERE EXIGENT CIRCUMSTANCES PRESENT HERE? [47] Section 13.1 of the Act makes no mention of exigent circumstances. However, am of the view that under exigent circumstances child protection worker could lawfully enter home without warrant to investigate the welfare of children and apprehend children. It cannot possibly be the state of our law that if children were being actively abused and in need of protection, and workers and police were outside the home, that they could not enter to investigate and apprehend the children. In Silveira, (1995) 1995 CanLII 89 (SCC), SCR 297, the court dealt with search for drugs and the charges under The Narcotic Control Act. In part, the court stated that exigent circumstances have been regarded, both under the common law and the Charter to permit warrantless search of home. am of the view that this exemption must apply to this provincial legislation. [48] Were exigent circumstances present here, thus allowing Ms. Buchanan to enter the home without warrant? Mr. Wiebe argued that exigent circumstances were present. He said that there was a necessity to enter to prevent the destruction of evidence. immediately questioned that. The evidence they were seeking was evidence that Mr. Lerat was present in the home. don’t now how that evidence could simply be destroyed. [49] From the evidence, I conclude that the preferrable or good option was that Mr. Lerat not be in the home. If he was not in the home, there was no particular problem and certainly no exigent circumstances to enter the home. The mere belief that Justin Lerat was there could not and did not provide exigent circumstances allowing entry of the home without warrant. ISSUE THREE IF THE ACCUSED’S CHARTER RIGHTS HAVE BEEN INFRINGED, WHAT IS THE APPROPRIATE REMEDY? SHOULD THE EVIDENCE OF ASSAULT BE EXCLUDED? [50] Mr. Wiebe argued that the assault upon Ms. Buchanan occurred after the breach by the unlawful entry and that there was no nexus between the Charter breach and the assault. On this basis he suggested that should admit the evidence, even if concluded that there was Charter breach. He relied upon the case of Krzychowiec, 2004 NSPC 60 (CanLII). This decision is good authority for his argument. However, it is note worthy that this decision was decided prior to Grant, 2009 SCC 32 (CanLII), when Stillman, (1997) 1997 CanLII 384 (SCC), SCR 607 represented the law. In fact, the trial judge specifically commented that “the accused was not conscripted to provide incriminating evidence” am now required to do Grant analysis. In Grant, the Court said: “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: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits.” [51] The Court elaborated that the first stage involved consideration of the Police or State conduct that infringed the Charter. In other cases, the Courts have said that the privacy interest in private dwelling or home is high. The Charter breach here is severe in that officers entered and searched the accused’s home without any authority to do so. [52] The Court elaborated that the second stage involved focus on the accused and how his or her interests were impacted by the breach. Again, the impact is large. Following their unlawful entrance, the worker gathered evidence, then apprehended and removed her children. [53] The Court elaborated that the third stage “asks whether the truth seeking function of the criminal trial process would be better served by admission of the evidence or by its exclusion.” The accused’s offence was a reaction to a very significant and provocative breach of her Charter rights. Her actions, in assaulting the Child Protection Worker, were not excusable or justifiable. However, the assault was minor in nature with no injury. As a result, in my view, the truth seeking function and the administration of justice are better served by exclusion of the evidence. When I look at all of these factors, I come to the conclusion that all the evidence obtained from and after the unlawful entry of the accused’s home should be excluded. ISSUE FOUR THE ACCUSED ACTIONS IN KICKING AT AND STRIKING JENNIFER BUCHANAN CONSTITUTED AN ASSAULT. WERE THESE ACTIONS JUSTIFIED ON THE BASIS OF DEFENCE OF PROPERTY OR DEFENCE OF THIRD PERSON? [54] Given my decision on the Charter issues, need not decide this issue. However, note that in the Krzychowiec decision, referred to by Mr. Wiebe, the Honourable Judge Gibson acquitted the accused on the basis that his use of force was justified defence of property and person. He noted that the actual force utilized by the accused was minimal. For these same reasons, would conclude that Ms. Bigsky used minimal force and the use of that minimal force was justified. [55] For all of the above mentioned reason, would exclude the evidence obtained after the unlawful entry into the accused’s apartment suite. Having done that, there is no evidence against the accused and I find her not guilty of both charges. [56] express my thanks to both counsel for their excellent presentation of very interesting case. Dated at the City of Moose Jaw, in the Province of Saskatchewan this 31 day of August 2016.

HELD: The accused was found not guilty. The court found that the accused’s s. 8 Charter rights were breached. Pursuant to a Grant analysis, the court excluded the evidence obtained after the illegal entry of the accused’s home. The court found that the accused had not consented to the entry by the officer and the complainant and it was therefore a warrantless search. The officer did not have the lawful authority to enter the home on the basis of arresting the father as he was not in hot pursuit. The complainant had not obtained a warrant under s. 13.1 of The Child and Family Services Act to enter the accused’s home and therefore had no lawful authority to enter the home. There were no exigent circumstances to justify the search such as preventing the destruction of evidence as they already established that the person they sought was not in the house. The unlawful entry and search of the accused’s home was a severe breach of the accused’s Charter rights. The impact upon her was severe as the complainant gathered evidence and apprehended her children. The accused’s assault on the complainant was minor in nature and although not excusable, her offence was a reaction to a significant breach of her rights. The administration of justice was served by excluding the evidence.

e_2016skpc106.txt

R.C. Mills QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 506 Date: 2009 12 23 Docket: Q. B. G. 1455 of 2009 Judicial Centre: Regina BETWEEN: SHEILA BUCH and NATHAN KOCH, JEFFERY DON VANIN and THE DIRECTOR OF RESIDENTIAL TENANCIES RESPONDENTS Appearing: Adam T. Ailsby for the appellant Nathan Koch appearing for himself Jeffery Vanin appearing for himself JUDGMENT GUNN J. December 23, 2009 [1] Sheila Buch appeals from a decision of the Hearing Officer of the Office of Residential Tenancies, dated August 27, 2009. The appeal is brought on the following questions of law: (a) The Hearing Officer erred in law by declaring that she did not have the jurisdiction to deal with the matter before her. (b) The Hearing Officer erred in law by determining that the tenant, Jeffery Vanin is entitled to the rights that the lease affords. (c) The Hearing Officer erred in law by failing to make an Order of Possession of the rental unit in favour of Ms. Buch and the respondent Nathan Buch. THE LEGISLATION [2] The following provisions of The Residential Tenancies Act, 2006, S.S. 2006, c. R-22.0001 have relevance: In this Act: ... (f) “landlord” means person who grants to another person the exclusive right of tenancy to rental unit and includes any of the following: (i) the owner of the rental unit, the owner’s agent or another person who, on behalf of the owner, grants to another person the exclusive right of tenancy to rental unit; ... (l) “rental unit” means living accommodation rented or intended to be rented to tenant; ... (q) “tenancy” means tenant’s right to possession of rental unit during tenancy agreement; (r) “tenancy agreement” means an agreement, whether written or oral, express or implied; (i) that is between landlord and tenant respecting possession of rental unit and use of any common areas and services and facilities that are the subject of the agreement; and (ii) pursuant to which the tenant...agrees to pay rent... 3(1) Notwithstanding any other Act but subject to section 5, this Act applies to tenancy agreements, rental units and other residential property. 9(1) For the purposes of this Act, the relationship of the landlord and tenant under tenancy agreement is one of contract only and does not create any interest in land in favour of the tenant. ... 10 Except as modified or varied by this Act or the regulations, the common law applies to tenancy agreements. 19(1) written tenancy agreement must comply with any prescribed requirements and must contain all of the following: (a) the standard conditions; (b) the correct legal names of the landlord and tenant; (c) the address of the rental unit; (d) the date the tenancy agreement is entered into; (e) the address for service and telephone number of the landlord or the landlord’s agent; (f) telephone number the tenant may contact in the case of emergencies, including emergency repairs, if that number is different from the number required by clause (e); (g) the agreed provisions respecting the following: (i) the date on which the tenancy commences; (ii) if the tenancy is periodic tenancy, whether it is on weekly, monthly or other periodic basis; (iii) if the tenancy is fixed term tenancy, the date the tenancy ends; (iv) the amount of rent payable for specified period, and, if the rent varies with the number of occupants, the amount by which it varies; (v) the day in the month, or in the other period on which the tenancy is based, on which the rent is due; (vi) provision that identifies whether the landlord or the tenant is to pay for utilities; (vii) provision setting out those services and facilities that are included in the rent; (viii) the amount of any security deposit and the date the security deposit was or must be paid. (2) Within 20 days after landlord and tenant enter into written tenancy agreement, the landlord must give the tenant copy of the signed agreement. (3) If tenancy agreement is not in writing, the landlord must nevertheless provide the information required by clauses (1)(e) and (f) to the tenant, in writing, within 20 days after the date that they enter into the tenancy agreement. (4) If the premises in or on which the residential property is situated contains more than one rental unit and the landlord retains possession of part of the premises for the common use of all tenants, the landlord shall post and maintain in conspicuous place in the premises or at or near the main entrance to the premises prominent notice containing: (a) the legal name of the landlord; and (b) the address for service and telephone number of the landlord or the landlord’s agent. (5) tenant’s obligation to pay rent is suspended if the landlord: (a) subject to subsection (6), in the case of written tenancy agreement, does not provide copy of the written tenancy agreement required by subsection (2);or (b) in the case of tenancy agreement that is not in writing, does not provide the information required by subsection (3). (6) landlord may apply for an order pursuant to section 70 that the tenant’s obligation to pay rent is not suspended pursuant to clause (5)(a) and that the tenant must continue to pay rent if: (a) tenant alleges that the landlord has not provided written agreement that fully complies with subsection (1); and (b) hearing officer is satisfied that: (i) the landlord has provided the tenant with written agreement that substantially complies with subsection (1); and (ii) the tenant is not prejudiced by any error or omission in the written agreement mentioned in subclause (i). (7) tenancy agreement is not invalid if landlord fails to provide the information required of the landlord pursuant to subsection (1) or (3) unless hearing officer, on an application by the tenant for an order pursuant to section 70, is satisfied that the failure is significant and the tenant is prejudiced by the failure. 20 To create fixed term tenancy of three months or longer, the landlord and tenant must enter into written tenancy agreement. 70(1) An application for an order respecting any residential tenancy dispute between landlord and tenant must be made in the form and manner that the director may direct. (2) Subject to subsection (14), if an application is made pursuant to subsection (1) and the prescribed application fee is paid to the director: (a) the director shall: (i) select hearing officer from the panel of hearing officers appointed pursuant to section 73 to hear the matter or determine that the director will be the hearing officer to hear the matter; and (ii) issue to the applicant written notice of the date and place of hearing; and (b) the applicant shall serve that notice on those persons concerned with the matter that the director may direct and in the manner the director may direct. (3) The director shall issue written notice of the date and place of hearing and cause the notice to be served on all parties concerned with the matter if: (a) the director becomes aware of possible contravention of or failure to comply with this Act, the regulations, an order made pursuant to this Act or tenancy agreement; and (b) the director determines that it is in the public interest to hold hearing. (4) For the purposes of subsection (3), the director shall select hearing officer from the panel of hearing officers appointed pursuant to section 73 to hear the matter or determine that the director will be the hearing officer to hear the matter. (5) On receiving an application pursuant to subsection (1) or determining pursuant to subsection (3) that hearing should be held, the director may direct an investigation into the matter. (6) After holding hearing pursuant to this section, hearing officer may make any order the hearing officer considers just and equitable in the circumstances, including all or any of the following: (a) an order directing any person found contravening or failing to comply with tenancy agreement, this Act, the regulations or an order made pursuant to this Act to stop that contravention or failure and to so comply; (b) an order requiring tenant to pay to the director all or any part of any instalment of rent otherwise payable to the landlord; (c) an order requiring the payment of damages; (d) subject to section 68, an order granting possession of rental unit; (e) an order determining the disposition of security deposit and any accrued interest pursuant to section 33. (7) If an order is made pursuant to clause (6)(b), the hearing officer may direct that the moneys paid to the director be used to remedy the landlord’s contravention of or failure to comply with tenancy agreement, this Act, the regulations or an order made pursuant to this Act. (8) For the purposes of hearing pursuant to this section: (a) submission may be made: (i) orally, including by telephone; or (ii) in writing; and (b) another party to the hearing is to be given an opportunity to rebut submission mentioned in clause (a) at the time of the hearing, or at later time, and in the manner the hearing officer considers appropriate. (9) On making an order pursuant to subsection (6), the director shall serve copy of the order and copy of section 72 on each party involved in the matter with respect to which the order was made. (10) The director may serve the copies mentioned in subsection (9): (a) by personal service; (b) by ordinary mail; or (c) in the case of service on the tenant, by causing copy of the order to be posted on the door of the tenant’s rental unit. (11) In any application by landlord for possession of rental unit, the tenant may also request an order of relief pursuant to this section and hearing officer may grant that relief if it appears to the hearing officer that: (a) notice to end the tenancy agreement was given to the tenant because of the tenant’s good faith complaint to the director or to any other agency of the Government of Saskatchewan, the Government of Canada or municipality alleging the contravention of any Act, bylaw or other law dealing with health or safety standards, including housing standards; (b) notice to end the tenancy agreement was given to the tenant because of the tenant’s attempt to secure or enforce the tenant’s rights pursuant to this Act; (c) the landlord has contravened provision of the tenancy agreement or has contravened any standard condition; or (d) notice to the end the tenancy agreement was given to the tenant for non-payment of rent pursuant to section 57 and the hearing officer is satisfied that: (i) the non-payment of rent relates to amounts that are the result of an increase to the rent and the landlord increased the rent for the purpose of enabling the landlord to end the tenancy; and (ii) it is just and equitable for the order to be made. (12) An order for relief pursuant to subsection (11) may include any of the following terms of any conditions the hearing officer considers appropriate having regard to the conduct of the parties and any other circumstances of the proceedings: (a) relief with respect to payment of rent or reasonable compensation; (b) an order to restrain any contravention as mentioned in clause 11(c). (13) If hearing officer decides that the landlord is entitled to possession of the rental unit, the hearing officer may make an order for possession and order writ of possession in the prescribed form directed to the sheriff acting at the judicial centre nearest to the place where the rental unit is situated commencing the sheriff to place the landlord in possession of the rental unit as soon as is reasonably possible. (14) The director may refuse to issue written notice of hearing to, and hearing officer may decline to make an order respecting, landlord who: (a) is in contravention of an order made pursuant to this Act; or (b) has failed to forward security deposit and any accrued interest to the director pursuant to section 33. 72(1) Any person who is aggrieved by decision or order of hearing officer may appeal the decision or order on question of law or of jurisdiction to judge of the Court of Queen’s Bench within 30 days after the date of the decision or order. THE DECISIONS OF THE HEARING OFFICER: 1. DECISION DATED JUNE 24, 2009 APPLICATION: The Tenant claims that the Landlord has breached the rights of the Tenant by serving notice to vacate. The Tenant seeks an Order that the Landlord withdraw the notice ot[sic] vacate. FACTS AND CONCLUSIONS: hearing was held on June 8, 2009 at Regina, Saskatchewan. The Landlord was properly served with the Notice of Hearing as it has come to the attention of the Landlord. The Landlord was not present. Evidence was presented or given by the following persons: Jeffery Vanin the Tenant. The Tenant signed year lease to rent room in the Landlord, Nathan Koch’s home. At the time the Tenant knew only that Mr. Koch was the Landlord. In May he was served with notice to vacate by Sheila Buch advising him to leave as of June 15th as she was moving into the premises. He then learned that Ms. Buch who is Mr. Koch’s Mother was co-owner of the property. While one of pair of joint owners can serve notice to vacate, the section that the Landlord relies upon is only available to periodic Tenancies and Mr. Vanin has year lease. Secondly, even if there wasn’t lease, the notice did not provide proper notice, having been served in May and requiring the Tenant to leave on June 15th which would not be full calendar month’s notice. Therefore the Landlords[sic] to vacate cannot stand. DECISION According to Section 70 of The Residential Tenancies Act, 2006t[sic] hereby Order that the Notice to Vacate dated May 7, 2009 is set aside. [3] new hearing was scheduled for July 30 as Ms. Buch advised the Hearing Officer that she had not received notice of the hearing. [4] letter dated August 7, 2009 to Ms. Buch, Mr. Vanin and Mr. Koch from the office of Residential Tenancies stated that ”... after the hearing on July 29, 2009 it came to the attention of the Hearing Officer that the Landlord, Sheila Buch had made an application for possession of the property. This was not heard on July 29th.” Therefore new hearing was scheduled for August 19, 2009. DECISION DATED AUGUST 27, 2009: APPLICATION: The Landlord seeks an Order of Possession pursuant to section 70 of The Residential Tenancies Act, 2006 of the rental unit based on the Tenant having disputed the termination notice. The Tenant also claims that the Landlord has breached the rights of the Tenant by serving notice to vacate and seeks an order that the Landlord withdraw the notice to vacate. FACTS AND CONCLUSIONS: hearing was held on June 8, 2009, July 30, 2009 and August 19, 2009 at Regina, Saskatchewan. The Notice of Hearing was properly served personally. Evidence was presented or given by the following persons: Jeffery Don Vanin on June and July 30, 2009; Sheila Buch by telephone on June 8, 2009 and in person July 30, 2009 and August 19, 2009; Nathan Koch on July 30, 2009. The Landlords are Mother and Son. Ms. Buch lived out of province for number of years, returning in summers to reside in the premises and then returning to her job in Alberta in September. This year she wanted to move back to her house in Riceton on permanent basis. She found that her son, the other Landlord, had rented out portion of the house to Tenant and had signed 3-year lease. She seeks an order that the Tenant vacate in order that she can move into her home. The Landlord, Mr. Koch said that he sometimes works out of town and there was [in] issue with the need for someone to be in the premises for insurance purposes. He stated that he felt the responsible thing to do was to get responsible person to live as roommate so that the house would be looked after. He acknowledged that his Mother usually came home for summer but did not know that she wanted to move back permanently. The Tenant states that he signed 3-year lease in good faith. When he signed the lease, he did not know that there was second Landlord living out of province and thought that Mr. Koch was the sole owner of the property. have no jurisdiction to deal with dispute between two Landlords. can only deal with the situation between the Landlords and this Tenant. The Tenant is not at fault in this situation. He signed lease in good faith and is entitled to the rights that the lease affords. Until such time as the issues are settled between the two Landlords, the Tenant has right to remain in the property. DECISION: For the reasons set out above, dismiss the Landlord’s claim for possession and hold that the Notice to Vacate served on the Tenant dated May 7, 2009 is set aside. 1. Does the Act apply? A. Is room in house rental unit capable of being the subject of tenancy? B. Was there tenancy agreement? 2. If the answer to #1 is yes has the Hearing Officer made an error in law in finding she had no jurisdiction? DISCUSSION: 1. Does the Act apply? A. Is room in house rental unit capable of being the subject of tenancy? [5] The Act applies to tenancy agreements, rental units and other residential property (see Section 3(1)). Section of the Act sets out what the Act does not apply to. This list does not include room in house. And lastly rental unit is defined in section to be living accommodation rented or intended to be rented to tenant. So, it would appear that room in house is rental unit capable of being the subject of tenancy. B. Was there tenancy agreement? [6] Section 20 of the Act provides that to create fixed term tenancy of three months or longer, the landlord and tenant must enter into written tenancy agreement. Mr. Vanin signed form entitled “Application/Lease Agreement” for period of 36 months commencing February 1, 2009 and ending January 31, 2012. [7] Section 19 of the Act outlines the requirements for written tenancy agreements. One of the requirements of the Act is that written tenancy agreement must contain the standard legal names of the landlord and tenant (see s. 19(1)(b)). The lease agreement that Mr. Vanin signed contains the name of Nathan Koch as landlord and does not contain the name of Sheila Buch. However s. 19(7) of the Act states that tenancy agreement is not invalid if landlord fails to provide the information required of landlord pursuant to ss. (1) or (3) unless hearing officer, on an application by the tenant for an order pursuant to s. 70, is satisfied that the failure is significant and the tenant is prejudiced by the failure. No such finding was made in this case. [8] That takes us to the ultimate question of whether Nathan Koch as only one of two joint owners can bind the other joint owner? [9] In the text, Sir Richard Edgar Megarry and Sir William Wade, The Law of Real Property, 4th ed. (London: Stevens Sons Limited, 1975) at p. 394 the Honourable Sir Robert Megarry and Professor H.W.R. Wade explain the principles of joint tenancy: Any legal act, eg., conveyance or lease of the land, or surrender of lease requires the participation of all the joint tenants; one cannot dispose of it by himself, for he by himself has not the whole estate in it. But exceptions to this rule are found in the cases of personal representatives and of the determination of periodic tenancies (eg., weekly or monthly tenancies), which are determinative on the usual notice given by one of joint landlords or one of joint tenants, since unanimity is required to continue such tenancy. Yet for one co-owner to give such notice without the consent of all persons beneficially entitled will, after 1925, usually be breach of the trusts now existing in the case of co-ownership. [10] In these circumstances, clearly there was no participation by both owners in entering into this lease agreement. The Act also defines landlord as “the owner’s agent or another person who, on behalf of the owner, grants to another person the exclusive right of tenancy to rental unit” (see s. 2(f)(i) supra). Agency is the relationship between one part (“the principal” and another “the agent”) whereby the agent is empowered to act on behalf of and to represent the principal. Agency emerges from the express or implied consent of principal and agent, or by subsequent ratification by the principal of the agent’s acts done on the principal’s behalf, or by estoppel, or by operation of the principles of law. (See Agency, C.E.D. (West 3rd) (looseleaf, (Rel. 2009-10)October 2009) at 137 and 145 paras and 15). [11] There was no evidence before the Hearing Officer that Nathan Koch was in any way acting as agent for Sheila Buch. In fact Mr. Koch’s evidence would lead to the opposite conclusion. There was no express consent of principal and agent. [12] In Crampsey et al. v. Deveney (1968), 1968 CanLII 34 (SCC), D.L.R. (3d) 161; [1969] S.C.R. 267 the Supreme Court considered whether an agency might arise by implication in certain circumstances. No agency relationship was found where one of the defendants Anna Crampsey who held property in joint tenancy with her three children, listed and attempted to sell property without consulting all of the children. In Crampsey, the children refused to sign and later refused to close the transaction. Judson, J. held at 163: ... In my view, no agency relationship existed between Anna and her children at the time of the sale. It is true that she had managed the property and collected the rents for many years. She always asserted her right to do this and that she alone had the right to sell and to sign the deed. No one in the family questioned her assertions. The fact that Anna had the property listed for sale in 1960 does not take the matter any further. She had no authority from the children to do so. Indeed she did not even notify them of what she intended to do and only two actually knew of the listing. [13] Brief consideration can be given to agency by estoppel. This can arise where one person has so acted so as to lead another to believe that he or she has authorized third person, without any actual authority, to act on his or her behalf, and that other person, in such belief, enters into transaction with that third person. (See Agency, C.E.D. (West 3rd) (looseleaf, (Rel. 2009-10) October 2009) at 157, para 44.) In that case the first person is estopped from denying the fact of the third person’s agency under the general law of estoppel, and it is immaterial whether the ostensible agent had no authority whatever in fact, or merely acted in excess of his actual authority. (See Hals., 3rd ed., pp. 158-159, quoted with approval in Crampsey, at 3). [14] To create agency by estoppel, there must be some positive statement or conduct by the principal that another person had authority to act for the “principal”. In Dogwood Drilling Ltd. V. Fitterer, 1977 CanLII 2197 (BC CC), [1977] W.W.R. 724 (B.C. County Court) the court found an agency relationship existed by the course of conduct that was adopted by the defendant and sufficient words evidencing an agency. Silence or inactivity will not suffice. (See Crampsey, supra at page 4) [15] Again the facts described by the Hearing Officer here do not support an agency by estoppel, since Mr. Vanin was not aware that Ms. Buch was an owner and Ms. Buch did not lead Mr. Vanin to believe that Nathan Koch was authorized to act on her behalf. Mr. Koch did not purport to act for his mother. He was acting for himself and asserting he had that right. [16] For all of the above reasons, I conclude that there was no valid tenancy agreement between Nathan Koch and Jeffrey Vanin. [17] The Act applies to tenancy agreements and to circumstances where rental units or residential property is validly rented by a landlord to a tenant. Those circumstances do not exist here and conclude that the Hearing Officer did not err in law in deciding she did not have jurisdiction to deal with this dispute. [18] However, the Hearing Officer did err in law in determining that Mr. Vanin was entitled to the rights that the lease affords. have come to this conclusion on the basis that the hearing officer did not have jurisdiction to deal with this matter in any respect. [19] There are other remedies available to Ms. Buch to obtain possession of the property in question. And without deciding the issue, Mr. Vanin may have remedies against Mr. Koch for any damages he has suffered as result of his dealings with Mr. Koch. [20] The appeal is dismissed.

The appellant landlord and mother appeals from a decision of the Hearing Officer of the Office of the Residential Tenancies dismissing her claim for possession. The landlords are mother and son. The mother lives out of province for a number of years. She returns in summers to reside in the premises. This year she wanted to return to her premises on a full time basis. She found that her son had rented out a portion of the house to a Tenant and had signed a 3 year lease. She sought an order that the Tenant vacate the premises. The Hearing Officer found he had no jurisdiction to deal with the dispute between the two landlords. He found he could only deal with the situation between the landlords and the tenant and found that the tenant had signed a lease in good faith and is entitled to the rights the lease affords and is entitled to remain in the premises. HELD: There was no valid tenancy agreement. The Act only applies to tenancy agreements and to circumstances where rental units or residential property is validly rented by a landlord to a tenant. In the circumstances, the Hearing Officer did not have jurisdiction to deal with this dispute. However, the Hearing Officer did err in law in determining that the tenant was entitled to the rights that the lease affords. 1) A room in a house is a rental unit capable of being the subject of a tenancy. 2) Clearly there was no participation by both owners in entering into this lease agreement. Mr. Koch's evidence would lead to the opposite conclusion. There was no express consent of principal and agent. 3) The facts as described by the Hearing Officer do not support an agency by estoppel. This can arise where one person has acted so as to lead another to believe that he or she has authorized a third person, without any actual authority, to act on his behalf and that other person, in such belief, enters into a transaction with that third person. The tenant here was not aware that the mother was an owner and the mother did not lead the tenant to believe that her son was authorized to act on her behalf.

2009skqb506.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 458 Date: 2010 12 15 Docket: F.L.D. No. 182 of 2009 Judicial Centre: Regina, Family Law Division BETWEEN: JAMES ALAN SCHEIBEL and ROBERT JAMES CROFT Counsel: James J. Vogel and Joanne C. Moser for the petitioner Gregory G. Walen, Q.C. for the respondent DECEMBER 15, 2010 SUPPLEMENTARY REASONS KEENE J. to November 25, 2010 JUDGMENT (2010 SKQB 439 (CanLII)) [1] am satisfied that the petitioner served the respondent with formal offer of settlement on September 14, 2010. The offer was not accepted (and indeed never was accepted) and the case proceeded to trial. The trial was concluded and the matter stood reserved pending my decision. About week after the conclusion of the trial, but before rendered my decision the petitioner revoked his offer. [2] have compared the offer of settlement to my decision. Suffice to say that my decision ended up being considerably more favourable to the petitioner than what the petitioner offered to settle for. This was the case for not only the family property issues (which the petitioner calculates he received about $229,888.00 more in my judgment than what he proposed in his offer) but also in terms of spousal support. The petitioner had offered to waive any spousal support but after trial ordered retroactive spousal support in the amount of $18,000.00. [3] The purpose of making formal offers to settle pursuant to the Queen’s Bench Rules of Court is obvious. Nor is this new or novel proceeding under the Queen’s Bench Rules of Court. The parties are encouraged to try and settle their disputes on reasonable basis and thereby avoid the heavy financial and emotional burden of trial. The sanction so to speak of not accepting a reasonable offer properly tendered and proceeding to trial is found in Rule 184B of the Queen’s Bench Rules of Court. This Rule calls for double costs from the date of service of the offer. [4] The wrinkle here is that the petitioner’s offer was revoked. However it was revoked week after the conclusion of the trial. Obviously if it had been accepted when tendered there would not have been trial with the attendant costs of running the trial. The fact the offer was revoked in my view does not alter the concept set out above and the resulting sanction. [5] The respondent argues that both parties received mixed results. The respondent further argues that the issues that were litigated were substantial and merited trial. agree that the positions put forth by both parties at trial did not result in either party getting exactly what they argued they should. However, nonetheless the fact remains that an offer to settle was tendered which was not accepted and the trial proceeded. Again all of this would have been avoided had the offer been accepted. That is the intent in my opinion of Rule 184B and shall implement the Rule. [6] In addition I wish to use my discretion offered to myself under Rule 545 to award costs as I see fit. [7] The combination of Rule 184B and Rule 545 lead myself to the following conclusion. I order that the petitioner shall have party to party costs under Column 3 up to September 14, 2010. From September 14, 2010 the petitioner shall be awarded double party to party costs under Column 3. In addition the petitioner shall receive his costs for this application fixed at $500.00. Since these matters have now been concluded all costs of course are payable forthwith. J. T. J. Keene

Supplementary reasons to 2010 SKQB 439. The petitioner served the respondent with a formal offer of settlement on September 14, 2010. The offer was not accepted and the matter proceeded to trial. A week after the trial was concluded and while the decision was reserved, the offer was revoked. The petitioner applies for costs against the respondent pursuant to Queen's Bench Rule 184B. HELD: Queen's Bench Rule 184B calls for double costs from the date of service of the offer. The fact the offer was revoked does not alter the concept in Rule 184B and the resulting sanction. The petitioner was awarded party to party costs under Column 3 up to September 14, 2010 and double party of party costs under Column 3 thereafter, together with the costs for this application. All costs were payable forthwith.

d_2010skqb458.txt

54 2003 SKQB 117 Q.B. A.D. 2000 No. 202 J.C. S.C. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: DARRELL MORVIK APPLICANT (PLAINTIFF) and JACOB (JACK) GOOHSEN RESPONDENT (DEFENDANT) and LESTER MORVIK THIRD PARTY Timothy J. Keene for the applicant (plaintiff) E. F. Anthony Merchant, Q.C. for the respondent (defendant) JUDGMENT McLELLAN J. March 12, 2003 [1] This is an application by the plaintiff for summary judgment pursuant to Rule 184A(1)(a) and/or s. 29 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 in accordance with minutes of settlement agreed to by the parties following a pre-trial conference on July 16, 2002. Rule 184A(1)(a) and s. 29 provide as follows: 184A.(1) Where any party to an accepted offer fails to comply with the terms thereof, the other party may apply to the court: (a) for judgment in the terms of the accepted offer .... 29(1) The court shall grant to the parties to an action or matter all remedies to which the parties appear to be entitled with respect to any legal or equitable claims that they have properly brought forward so that: (a) all issues in controversy between the parties are determined as completely and finally as possible; and (b) multiplicity of legal proceedings concerning the issues is avoided. (2) Relief pursuant to subsection (1) may be granted either absolutely or on any terms and conditions that judge considers appropriate. [2] In support of the application the plaintiff filed an affidavit containing the following paragraphs: 2. THAT Pre-trial Settlement Conference in regards to these matters was held at the Judicial Centre in Swift Current before the Honourable Mr. Justice Klebuc on July 16, 2002. As result of the Pre-trial Settlement Conference, Minutes of Settlement were executed between the parties and true copy of the said Minutes of Settlement are attached and marked as Exhibit “A” to this my affidavit. Exhibit “A” has been filed with this Honourable Court. 3. THAT my lawyer, Tim Keene, did receive the first installment of $5,000.00 from the Defendant on July 23, 2002. 4. THAT the remaining $15,000.00 that is to be paid pursuant to the Minutes of Settlement have not been paid to me nor has it been paid to my lawyer. 5. THAT pursuant to paragraph 1.(b) of the Minutes of Settlement, this matter was referred back to Judge Klebuc and Pre-trial Settlement Conference was held on November 5, 2002. 6. THAT require an order of this Honourable Court granting summary judgment in the amount of $15,000.00 plus my costs for this application and costs to be taxed to the date of the Minutes of Settlement (July 16, 2002). [3] The defendant did not file any affidavit material in opposition to the application. The defendant opposes the application solely on the basis that recent amendment to The Queen’s Bench Act, 1998 precludes the plaintiff from referring to the minutes of settlement. [4] The defendant argues that the majority of the plaintiff’s affidavit must be struck by reason of the fact that the averments contravene s. 28.1 of The Queen’s Bench Act, 1998. disagree. Section 28.1 is not meant to apply to the situation before me. Section 28.1 provides: 28.1 Except with the written consent of all parties to an action who participated in settlement pre-trial conference conducted by judge, the following are not admissible as evidence in any action or matter before any court: (a) evidence arising from anything said in the course of the settlement pre-trial conference; (b) anything said in the course of the settlement pre-trial conference; (c) any oral or written admission or communication made in the course of the settlement pre-trial conference. [5] If party to an action is unable to enforce concluded settlement agreement reached during pre-trial conference such result would render the settlement pre-trial process meaningless. The legislation never intended such result. Section 28.1 was enacted to provide litigants entering into pre-trial conference with the security of knowing that all discussions, admissions, concessions and negotiations that take place during pre-trial conference are accorded complete confidentiality unless and until the parties reach an agreement. [6] It is only after all discussions, admissions, disclosures, concessions and negotiations have concluded that settlement agreement is reduced to writing and executed by the parties. That agreement in no way offends the confidentiality required under s. 28.1. [7] agree with the following statements by Dickson J. in Zimmerman v. Zimmerman (1992), 1992 CanLII 8027 (SK QB), 104 Sask. R. 150 at 163 (Q.B.): ... An offer was made by one of the parties and accepted by the other. The resulting agreement should be recognized and enforced by our courts. Otherwise the primary purpose of the pretrial conference is lost. cost-saving and time-saving procedure would then be reduced to meaningless step in the litigation process. adopt the reasoning of Estey, J., in Revelstoke Companies Ltd. v. Moose Jaw et al., 1983 CanLII 2223 (SK QB), [1984] W.W.R. 52; 28 Sask. R. 115, at page 60 W.W.R.: “Settlements of actions have been encouraged in our courts for great many years and it appears to me that the courts should be hesitant in upsetting or rectifying minutes of settlement unless of course there be something in the nature of fraud, incapacity of party, or the minutes of settlement are too vague to enforce or are obviously incomplete.” [8] There is no suggestion by the defendant that there was non-disclosure, misrepresentation, duress or fraud in the execution of the minutes of settlement. There may, in certain circumstances, be exceptions where court will allow reference to be made to discussions, conversations and the like where such allegations are raised. do not have to decide that issue in this case. Nor is there any suggestion that the signatures on the minutes of settlement are not those of the parties and their solicitors. [9] Furthermore, the defendant does not argue that the minutes are unclear or ambiguous. The minutes of settlement provide as follows: MINUTES OF SETTLEMENT 1. The Parties agree to settle this action as follows: a) The Defendant shall pay to the Plaintiff $20,000.00 (twenty thousand dollars) as follows: i) $5,000.00 payable to Anderson Co. in trust for Darrell Morvik on or before July 23, 2002. ii) the balance of $15,000.00 payable to Anderson Co. in trust for Darrell Morvik on or before September 15, 2002. b) In the event the above monies are not paid then this action shall be returned to Pretrial Conference. The Third party agrees to allow consent default judgment be issued against him in the amount of $20,000.00 (twenty thousand dollars) in favour of the defendant Jacob (JACK) Goohsen. However this judgment shall not be entered into until the said $20,000.00 that Jacob (JACK) Goohsen is to pay to Darrell Morvik. Read, agreed to, and signed this July 16, 2002. signed “Darrell Morvik” “Tim Keene” Darrell Morvik signed “Jacob (Jack) Goohsen” “E. F. A. Merchant” Jacob (Jack) Goohsen signed “Lester Morvik” Lester Morvik [10] Clearly the enforceability of the settlement agreement can be determined by reading and interpreting its terms. [11] The defendant was to pay the plaintiff $20,000.00 by paying $5,000.00 on or before July 23, 2002 and the balance on or before September 25, 2002. The matter was returned to pre-trial conference before Klebuc J. on November 5, 2002. The defendant does not allege that the settlement was amended or altered at that time. Nor does he suggest that the balance of $15,000.00 does not remain owing. [12] Once an agreement has been finalized and executed by the parties there is no further requirement for such confidentiality with respect to the concluded agreement. If the parties had not reached settlement agreement any reference to such discussions, admissions, disclosures, concessions, negotiations or evidence arising from any such discussion in any subsequent proceeding would be prohibited. [13] The plaintiff is entitled to rely on the minutes of settlement and must be permitted to refer to the minutes in his affidavit. The affidavit makes no mention of anything said during the pre-trial conference nor of any evidence arising from anything said. There is no reference to any oral or written admission or conversation made in the course of the settlement pre-trial conference. He is also entitled to refer to the matters occurring subsequent to the execution of the minutes in order to establish non-compliance with the minutes. [14] In the result the applicant is entitled to enter judgment for $15,000.00 together with the costs of this application.

An application for summary judgment pursuant to Queen's Bench Rule 184(1)(a) and/or Queen's Bench Act s.29 in accordance with the minutes of settlement agreed to follow the pre-trial conference. The defendant did not file affidavit evidence but opposed the application solely on the basis that recent amendments to the Queen's Bench Act precludes reference to minutes of settlement. HELD: The plaintiff was entitled to enter judgment for $15,000 plus costs of this application. A settlement agreement reduced to writing in no way offends the confidentiality required under s.28.1. The plaintiff is entitled to rely on the minutes of settlement and must be permitted to refer to them in his affidavit. Section 28.1 is not meant to apply to this situation. If a party to an action is unable to enforce a concluded settlement, the pre-trial process becomes meaningless. The legislation never intended such a result. There was no suggestion that there was non-disclosure, misrepresentation, duress or fraud in the execution of the minutes of settlement. Nor was it suggested the minutes were unclear or ambiguous. The defendant did not allege the settlement was amended or altered or that the balance of $15,000 does not remain owing.

b_2003skqb117.txt

Court of Appeal for Saskatchewan Docket: CACV2634 Citation: Prescesky Prescesky, 111 Date: 2015-10-26 Between: Daniel Steven Prescesky Appellant (Petitioner) And Mandy Lee Prescesky Respondent (Respondent) Before: Lane, Jackson and Whitmore JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Whitmore On Appeal From: 2014 SKQB 334 (CanLII), Battleford FLD Appeal Heard: 27 May 2015 Counsel: Karina Jackson for the Appellant Donnon F. Revering for the Respondent Jackson J.A. I. Introduction [1] This is an appeal from the decision of Turcotte J. on October 16, 2014, ordering Daniel Prescesky to pay retroactive child support to his former wife, Mandy Lantz, in the amount of $21,645 and costs in the amount of $1,500 (Prescesky v Prescesky, 2014 SKQB 334 (CanLII), 456 Sask R 306 [Prescesky]). [2] Turcotte J. ordered retroactive child support for the period from January 1, 2009, to August 31, 2012, inclusive. Importantly, on May 12, 2011, the parties agreed to fix support by varying previous support order thus giving rise to the major issue on this appeal, notably, whether Turcotte J. had the authority to order the payment of retroactive support both before and after that date. [3] By way of background, Daniel Prescesky and Mandy Schmidt were married on November 4, 1995. They have two children Rylee Prescesky (18 years old) and Chase Prescesky (16 years old). The parties separated in March of 2005. [4] They were able to settle their differences at the outset of their break-up. On June 29, 2006, Kreuger J. issued Consent Divorce Judgment ordering that the parties shall have joint custody of the children who will live with the mother. On the same day, Kreuger J. also issued Consent Child Support Order [2006 Consent Child Support Order]. The relevant terms of that order are as follows: 3. The Petitioner [Mr. Prescesky] shall pay to the Respondent [Ms. Prescesky] for the support of the Children the sum of $1,220 to be paid on the 1st day of each and every month commencing June 1, 2006, and continuing thereafter until child is no longer Child within the meaning of the Divorce Act. 4. The Petitioner and the Respondent intend that child support payable in clause above shall include any babysitting expenses incurred by either party. 5. On or before June in each year the parties shall exchange T-4 Slips, Tax Returns and Notices of Assessment. The parties agree that they will endeavor to adjust from year to year, the amount of child support payable to reflect the amount payable pursuant to the Federal Child Support Guidelines. (pp. 1–2) It should be noted that clause of the 2006 Consent Child Support Order requires the parties to exchange financial information and to endeavour to make adjustments, but it does not specify the effective date of any such adjustments. [5] Payments continued in accordance with this order until October of 2008 when, while living in Alberta, Mr. Prescesky was arrested for drinking and driving. He received an immediate driver’s licence suspension, which affected his ability to work. As result, he moved back to Saskatchewan to work on his father’s farm where he was making $1,500 month. He applied to the Court of Queen’s Bench at Battleford to vary the 2006 Consent Child Support Order to reduce the amount of support to the children of his former marriage. In his affidavit, he swore that he anticipated his annual income would be $18,000 only. [6] By 2008, the parties had moved on with their lives in other ways. Both had remarried and started other families. Mr. Prescesky married Trisha (maiden name not shown in the record) and Ms. Prescesky married Darcy Lantz and assumed his last name. In May of 2008, Mr. Lantz was diagnosed with rare form of cancer. In October of 2008, he underwent his first major surgery, becoming progressively more ill during the time span covered by this matter, ultimately dying of his illness in August of 2012. [7] Smith J. heard the first variation application. He allowed Mr. Prescesky’s variation application. In doing so, he set Mr. Prescesky’s annual income at $55,000, which reduced his child support obligations from $1,220 to $769 month commencing December 1, 2008 [2008 Variation Order]. Smith J. further ordered Mr. Prescesky to deliver his income tax information to Ms. Lantz by June 30 of every year, commencing June of 2009, but did not make any other change to the 2006 Consent Child Support Order. [8] Just one month later, in January of 2009, number of factors resulted in Mr. Prescesky deciding to resume employment in Alberta. The drinking and driving charges were stayed and Mr. Prescesky regained his licence. By February of 2009, he had regained good employment in Alberta and was earning roughly what he had been earning in 2008. Nonetheless, he continued to make payments in accordance with the 2008 Variation Order in the amount of $769 per month. [9] On February 17, 2011, Ms. Lantz served Mr. Prescesky with Notice to Disclose pursuant to the Queen’s Bench Rules requiring him to provide her and the Court with financial and property statements. [10] In March of 2011, Mr. Prescesky, in the course of an access exchange, asked to meet with Ms. Lantz. While what was said and done on that occasion was matter of testimony at the trial, it is uncontested that Mr. Prescesky told Ms. Lantz he was financially strapped and the most he could afford to pay for child support was $950 per month, which corresponded to an income of $67,000 based on the Alberta tables (Prescesky, para. 27). [11] Thereafter the lawyers exchanged letters. On March 15, 2011, counsel for Mr. Prescesky sent Ms. Lantz’s counsel financial information, which included his 2008 and 2009 income tax returns and assessments, his 2010 T4 Slip and pay stubs up to and including February 9, 2011: (a) 2008 Income Tax Return and Reassessment confirming income of $82,728.25; (b) 2009 Income Tax Return and Assessment confirming income of $78,304.81; (c) 2010 T4 slip showing income of $89,605.78; and (d) pay stubs for the period ending January 12, 2011, January 26, 2011, and February 9, 2011, showing taxable earnings for the year to date at $15,166.20. The pay stubs were accompanied by letter dated March 8, 2011, stating the following: Daniel has been full-time, permanent employee of Coal Valley Resources Inc., Coal Valley Mine, since February 19, 2009. He is Temporary Backhoe Operator in our Pit Operations Department. Should the temporary bid end, he would revert back to his original position of Coal Rock Hauler. His current hourly rate as Backhoe Operator is $35.19. (As Coal/Rock Hauler he would earn $31 .77 an hour). He works an average of 42 hours per week and earns base annual salary of $76,854.96 (or $69,385.68). His base salary does not include premium time paid at time and half for hours of every shift; overtime at double time, or shift premiums for nights and weekends. He successfully passed his probationary period and prospects for continued employment are good. (Appeal Book, p. 101a) [12] On April 11, 2011, counsel for Ms. Lantz wrote to counsel for Mr. Prescesky enclosing Variation Order with Ms. Lantz’s consent endorsed on it. The terms of the Variation Order “estimated” Mr. Prescesky’s income at $67,000 annually, and adjusted his child support payment corresponding to $950 month until further order of the Court. Notably, counsel for Ms. Lantz stated the following in his letter: “It should be noted that our client, in the spirit of cooperation, is foregoing approximately $7250 in arrears of child support that are potentially owing to our Client if our Client pursued retroactive order” (Appeal Book, p. 125a). No mention was made of the forbearance to sue for arrears in the amount of $7,250 in the Variation Order. [13] Mr. Prescesky’s counsel then filed the Variation Order with the Court of Queen’s Bench, which was issued under the direction of Allbright J. on May 12, 2011 [2011 Variation Order]. No financial information was filed with the Court. [14] On December 2, 2011, Mr. Prescesky applied to vary the 2006 Consent Child Support Order and the 2011 Variation Order by making his home the primary residence of Chase Prescesky and varying the amount of support he would have to pay accordingly. In support of his application, Mr. Prescesky filed financial statement showing employment income, estimated, for 2011 in the amount of $132,000. [15] In July of 2012, Ms. Lantz applied to vary the 2008 Variation Order and the 2011 Variation Order claiming arrears dating from January 1, 2009. [16] On September 6, 2012, Rothery J. made an interim order declaring Mr. Prescesky’s current annual guideline income to be $129,495 and directing Mr. Prescesky to pay interim child support to Ms. Prescesky in the amount of $1,822 per month for the two children, both of whom remained in her care. Rothery J. directed the issue of retroactive child support to pre-trial and trial. [17] The issue of ongoing child support from (and after) September 1, 2012, was resolved by agreement of the parties prior to the trial. At some point, Mr. Prescesky abandoned his request to change the primary residence of Chase Prescesky, leaving the issue of retroactive child support as the only issue for trial. [18] When the dust settled and all figures were known, this is the total amount of possible arrears for the period from January 1, 2009–August 31, 2012 (inclusive): Daniel’s Income Amount Paid Per Month Guideline Amount Payable Per Month Total Arrears (year) 2011 (January to March) 2011 (April to December) 2012 (January to September) $35,817 (Appeal Book, p. 98a) [19] Ultimately, brief trial took place to consider whether Ms. Lantz was entitled to retroactive child support for the period from January 1, 2009, to and including August 31, 2012, and, if so, in what amount. III. Decision of the Trial Judge [20] At trial, Turcotte J. found Mr. Prescesky owed retroactive child support to Ms. Lantz. In making this order, Turcotte J. determined that the subsequent orders were all variations of the 2006 Consent Child Support Order and each order was made subject to further order from the court. Turcotte J. referred to the disclosure requirements under the initial child support order. According to these obligations, Mr. Prescesky had positive obligation to supply Ms. Lantz with his financial information and any change in circumstances that would affect his child support payment: “On or before June in each year the parties shall exchange [tax information]. The parties agree that they will endeavor to adjust from year to year, the amount of child support payable to reflect the amount payable pursuant to the Federal Child Support Guidelines” (2006 Consent Child Support Order, para. 5). [21] Turcotte J. did not accept Mr. Prescesky’s testimony that he routinely gave Ms. Lantz his financial information as he was required to do. Instead, Turcotte J. found he only gave this information on three occasions: (i) in accordance with these court proceedings; (ii) at the 2011 meeting between the two of them in Mr. Prescesky’s truck; and (iii) through his lawyer prior to the 2011 Variation Order. He found the failure to inform Ms. Lantz of the 2009 material changes and to have adjusted his child support was “blameworthy conduct within the meaning established by D.B.S.” (Prescesky, para. 47: D.B.S. S.R.G., 2006 SCC 37 (CanLII), [2006] SCR 231 [D.B.S.]). [22] In 2011, Mr. Prescesky persuaded his former wife that monthly child support order of $950 per month was all he could afford. The difference between this amount and his actual 2011 income were quite different. The size of this discrepancy was another factor suggesting full retroactive review of Mr. Prescesky’s child support obligations from 2009. [23] Turcotte J. determined that Mr. Prescesky’s actual income in 2009, 2010, 2011 and 2012 was in fact $78,305, $89,750, $128,746 and $134,808 respectively. According to the Federal Child Support Guidelines, SOR/97-175 [Guidelines], he underpaid in every year. Based on these numbers, he concluded Mr. Prescesky was supposed to have paid child support in the amount of $65,808 from the period of January 1, 2009, through August 30, 2012. Instead, he paid $36,913 only, leaving shortfall of $28,895. [24] While both parties state they are dealing with financial hardship, Turcotte J. found, combined with his wife’s income and minus their expenses, Mr. Prescesky’s household should have an annual surplus of over $20,000. [25] Ms. Lantz was prepared in 2011 to forgo $7,250 in child support arrears and this amount was deducted from the shortfall by Turcotte J. out of fairness. [26] Turcotte J.’s order required that Mr. Prescesky pay Ms. Lantz retroactive child support in the amount of $21,645 paid in installments of $601.25 on the 15th day of each month for 36 months. These retroactive payments were to be in addition to Mr. Prescesky’s child support obligation arising from Rothery J.’s 2012 variation order of $1,822 on the first day of every month subject to further variation from the court. Both parties were ordered to give each other their financial information by July 1st of every year. Costs were awarded to Ms. Lantz in the amount of $1,500. [27] Mr. Prescesky appeals to this Court from the order of Turcotte J. Analysis [28] Mr. Prescesky submits that Turcotte J. erred: (i) by varying the 2011 Variation Order, which he submits was a final order issued by consent of the parties in accordance with their prior agreement; (ii) by varying the 2011 Variation Order without first finding a material change in circumstances; (iii) by misapprehending the facts when he found Mr. Prescesky did not advise Ms. Lantz of changes to his circumstances; and (iv) by misapprehending the facts by failing to find unreasonable delay. [29] These arguments form the issues on appeal, which may be stated as follows: (a) Did Turcotte J. have the jurisdiction to vary the 2011 Variation Order? (b) Was it necessary to find a material change in circumstances before the 2011 Variation Order could be varied? (c) Did Turcotte J. err by finding Ms. Lantz had not been advised of changes in circumstances? (d) Did Turcotte J. err by failing to find unreasonable delay? [30] In passing, should note that Mr. Prescesky’s counsel raised in oral argument potential additional ground of appeal, notably that if her client were ordered to pay arrears, the adjustment should be made as of the date the financial information was to be exchanged rather than at some earlier time. Given the wording of the 2006 Consent Child Support Order, which does not direct that an adjustment should be made as of particular date, that issue does not arise in this appeal. A. Did Turcotte J. have the jurisdiction to vary the 2011 Variation Order? [31] Mr. Prescesky and Ms. Lantz each filed an “Application for Variation” with the Court of Queen’s Bench. Mr. Prescesky’s application requested the following: (i) to vary the 2006 Consent Child Support Order so as to vary the primary residence of Chase from the primary care of Ms. Lantz to his care; and (ii) to vary the 2006 Consent Child Support Order and the subsequent child support orders to take into account the change in custody. Ms. Lantz also filed an “Application for Variation” to vary the 2006 Consent Child Support Order and the subsequent orders both prospectively and retroactively. Neither party indicated under what authority they asked the Court of Queen’s Bench to make the requested orders. [32] On the question of his authority to vary the 2011 Variation Order with respect to arrears arising prior to it issuing, Turcotte J. wrote the following: [43] The 2008 variation order permitted Mandy to pursue the issue of imputation of income to trial. It is clear that order was not intended to be final order and was subject to further determination by the Court. The 2011 variation order varied the interim order granted December 4, 2008. Neither the 2008 variation order nor the 2011 variation order varied the provision of the child support order that the parties would endeavour to adjust annually the child support payable by Daniel based on their annual exchange of financial information and the amount payable under the Guidelines. Both orders were made subject to further order of the Court. Accordingly, this Court retains jurisdiction to review Daniel’s child support obligations in the context of all of the evidence presented at the trial and determine the issues based on that evidence. (See: Hall Hall, 2011 SKCA 86 (CanLII), 337 DLR (4th) 89, and the cases cited therein at paragraph 1.) (Emphasis added, Prescesky) [33] Mr. Prescesky argues that Turcotte J. erred by treating the 2008 Variation Order as an interim order and the 2011 Variation Order as something other than final order—and then proceeding to vary it. His counsel asserts that the 2011 Variation Order was an un-appealed final order covering past arrears and was based on projected salary of approximately $120,000. Further, he argues that the Court could not “go-behind” the 2011 Variation Order as it was issued by consent in accordance with the parties’ agreement. The parties had an agreement and the Court sanctioned it. [34] As support for these propositions, Mr. Prescesky relies upon two streams of authority. First, he asserts that Turcotte J. could not overturn decision of judge of the same court, dealing with the same lis. In this regard, he refers to Procknow Procknow (1985), 1985 CanLII 2767 (SK QB), 42 Sask 19 (QB) [Procknow] decision wherein McIntyre J. wrote the following: [5] agree basically with the solicitor for the respondent that this motion is waste of the court’s time, and that it is in conflict with the consent order of Mr. Justice W. Matheson and have no right to make change to any order of brother judge, unless there is agreement by counsel for the party, and again have no right to sit in appeal on any order granted by brother judge. If the applicant did not agree with the order of February 5, 1985, then he should not have instructed his solicitor to consent to it. (Emphasis added) [35] Second, he argues that in the area of family support orders, the courts draw a clear distinction between interim orders, which can be varied on an interim basis as a matter of jurisdiction, and final orders. In support of these arguments, Mr. Prescesky points to this comment in L.R. D.T. (1998), 1998 CanLII 13814 (SK QB), 178 Sask 115 (QB): [3] Any variation results in final order or determination. Often an application to vary final order is dealt with on the basis of affidavit evidence if, following the approach in Dufour v. Dufour, [1995] S.J. No. 293 (Q.L.) (Sask. Q.B.), the chamber judge is able, on the affidavit evidence, to find the material facts necessary to disposition of the application. Similar statements are made in Gaspers Gaspers, 2007 SKQB 353 (CanLII) at paras 10–11 (aff’d 2008 SKCA 94 (CanLII)) and Malinowski Malinowski, 2010 SKQB 27 (CanLII) at para 12, 349 Sask 210 [Malinowski]. [36] In my view, it is important not to confuse these two lines of authority. Procknow is good law, but it relies on common law principles and does not necessarily apply to child support orders. Whether the Court can vary an interim or a final order on an interim basis for child support is governed not by common law principles, but by the Divorce Act, RSC 1985, c 3 (2d Supp). [37] Sections 15.1 and 17 of the Divorce Act confer the jurisdiction to make and vary child support order on the Court of Queen’s Bench in this Province. For clarity, the applicable Divorce Act provisions are as follows: Definitions 2(1) In this Act, “child support order” means an order made under subsection 15.1(1); “support order” means child support order or spousal support order; Child support order 15.1(1) court of competent jurisdiction may, on application by either or both spouses, make an order requiring spouse to pay for the support of any or all children of the marriage. Interim order (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1). Terms and conditions 15.1(4) The court may make an order under subsection (1) or an interim order under subsection (2) for definite or indefinite period or until specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just. Order for variation, rescission or suspension 17(1) court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively, (a) support order or any provision thereof on application by either or both former spouses; or (b) custody order or any provision thereof on application by either or both former spouses or by any other person. Terms and conditions (3) The court may include in variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought. Factors for child support order 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. (Emphasis added) [38] The differences between s. 15.1 and s. 17 of the Divorce Act raise some questions as to the proper scope of an application under each section. This appeal concerns the question of judge’s authority to vary final order pursuant to s. 17 on an interim basis. The question arises in this appeal because Turcottte J. found the 2008 Variation Order to be an interim order, which has implications for the interpretation of the 2011 Variation Order, and he clearly varied the 2011 Variation Order. [39] Turning first to the question of the authority to vary final order on an interim basis pursuant to s. 17, this Court in brief oral reasons held in Frey Frey (1987), 1987 CanLII 4734 (SK CA), RFL (3d) 154 (Sask CA) at paras 5–6 [Frey] that “there is no power” to grant “interim maintenance” on an application pursuant to the equivalent of s. 17 of the Divorce Act, but judge could make an order to “relieve injustices.” Since Frey, it has become accepted that the Court in Frey held that there is no expressly legislated power to vary an interim order: McRann McRann, 2005 SKQB 207 (CanLII) [McRann] at para 12. [40] Some courts in Canada have not followed Frey (see, for example, Yeo Yeo (1998), 1998 CanLII 27672 (PE SCAD), 42 RFL (4th) 418 (PEISC (AD) [Yeo]) and commentary in Julien D. Payne and Marilyn A. Payne, Child Support Guidelines in Canada in Canada, 2015 (Toronto: Irwin Law, 2015) at 502. As result, the Court of Queen’s Bench has over the past 10 years or so been confronted by similar arguments as those being made by Mr. Prescesky on this appeal; that is to say, the courts lack the authority to vary final order on an interim basis (see Keogan Weekes, 2005 SKQB 114 (CanLII) at paras 19–33, 263 Sask 309; McRann at paras 12 and 13; Lepage Lepage, 2006 SKQB 18 (CanLII) at paras 32–34, 283 Sask 1; and Ford Ford, 2011 SKQB 349 (CanLII) at para 4). [41] We have not been asked to overrule Frey, nor do think it is necessary to consider doing so. While recognize the debate in the jurisprudence as to the proper interpretation of ss. 15.1 and 17 of the Divorce Act, some observations are in order. First, much of the jurisprudence taking different approach predates the Supreme Court of Canada’s explication of the proper method of statutory interpretation in Rizzo Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] SCR 27 at 40–41 [Rizzo]. Following the modern approach to statutory interpretation, the words of provision must be “read in their entire context and in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo, p. 28). note as well that the jurisprudence that questions Frey is founded on case authority that predates such authorities as D.B.S., which interpret the Divorce Act in accordance with the modern approach to statutory interpretation. [42] Second, ss. 15.1 and 17 apply to spousal support orders as well as child support. In that regard, it is significant that Yeo is spousal support case. It relies on the “clear” words of the statute and the need for “finality” in spousal support orders. It also leaves open the possibility of different interpretation for child support orders: [20] The Divorce Act contemplates that to the extent possible matters of custody, access and support should be addressed with the objective of finality in mind. With these issues the objective is not always achievable; however, where finality has been achieved in the form of final limited-term order, it was the clear intention of Parliament that any variation of that order would be dealt with once at final hearing where the complex threshold issues may be addressed fully. make this statement subject to whatever parens patriae jurisdiction may exist to vary orders respecting custody, access and child support on an interim basis, an issue which is not before the court. (Emphasis added, Yeo) [43] But it is well-recognized that child support orders are seldom “final,” in the sense of addressing rights in permanent way. The determination of divorce can be said to be final, but corollary relief for children seldom is. Legislation cannot address every question that will be raised. In the area of divorce, where law and procedure are linked, Parliament can only draft in broad principles, leaving the process by which orders are made up to the provinces and territories to resolve. [44] Third, courts have for some time interpreted s. 15.1 as allowing for successive interim orders: Spytkowsky Spytkowsky, 2009 SKQB 292 (CanLII) at para 18 [Spytkowsky] and Malinowski at para. 12. Such authority is said to rest on inherent jurisdiction: see Julien D. Payne and Marilyn A. Payne, in Canadian Family Law, 6th ed (Toronto: Irwin Law, 2015) at p. 487. With respect, find recourse to “inherent jurisdiction” to be questionable, preferring instead to construe the legislation in question, but take no issue with the conclusion that interim orders made under s. 15.1 may be varied on an interim basis. Again, nothing in the language of s. 15.1 specifically authorizes the making of multiple interim orders, but the application of the principles of statutory interpretation support the conclusion nonetheless. In making this comment, am addressing the authority to make more than one interim order under s. 15.1(2), not the circumstances under which successive orders should be made. [45] Fourth, generally speaking, interim orders are used for “interim” matters. Sandomirsky J. wrote the following in Jacobson Jacobson, 2011 SKQB 402 (CanLII): [1] Counsel is reminded that interim relief in family proceedings is generally to be sought in order to: 1. Manage the process or procedure of the action; 2. Preserve assets and keep the parties “whole” until trial; and 3. provide interim relief, in the form of support/maintenance order, use and preservation of family property, financial management pending settlement or trial, and to ensure adequate parenting. [2] Interim relief is not generally available to resolve issues in contest. trial or pre-trial allows for more thorough and judicious resolve of the issues. Generally, most issues should not be resolved in chambers upon conflicting affidavit evidence. [46] While that is the general rule, it is also correct that substantive issues are being resolved in Chambers, with the possibility that the decision will be revisited at later date. For example, in Graham Tomlinson, 2010 SKCA 101 (CanLII) at para. 27, 324 DLR (4th) 156, this Court held that retroactive child support may be ordered on an application for interim child support when the facts and law are clear and there is no triable issue. Such an award remains an interim order and, in principle, subject to variation, but once the issue of retroactive support is concluded in Chambers in clear case, the parties may find it unnecessary to further address the issue by way of pre-trial conference or trial. On the other hand, in Malinowski, McIntyre J. ordered retroactive support on an application in Chambers, making it clear that the resulting order would be final order (see paras. 12 and 19). [47] Fifth, the move away from the formalism of another era can be explained in terms of access to justice, which Wilson J. explained in Spytkowsky: Although there is an expectation that parties will eventually proceed through the various processes and obtain final orders or judgments regarding custody and child support, it is not unusual for parties to rely, for years, on an interim order. It is certainly preferable for parties to finalize the custody and child support issues either at the time of the divorce judgment, or within reasonable period of time thereafter. However, many do not …. In Spytkowsky, for example, it would have been costly to force trial rather than vary the prior interim order originally made in Chambers that had been in effect for 14 years and where material change in circumstances could be shown. On the evidence, it appeared that the youngest child was no longer child of the marriage and it was also appropriate to remit arrears of child support. In such circumstance, provisional order was appropriate and was appropriately made. [48] Sixth, section 17 does not use the word “interim” nor does it use the word “final.” The word “final” is imported into this area of the law from the practice domain dealing largely with “interlocutory” orders, which can have implications for appellate practice, but have less bearing when determining the rights of children. [49] Having regard for these considerations, and applying the modern principle of statutory interpretation, and the Supreme Court authority above-mentioned, conclude that Parliament did not intend to limit the court’s authority to vary final orders—in Chambers or otherwise. Section 17(1) specifically confers the authority to vary, rescind or suspend, prospectively or retrospectively any order. The only question is whether it can be done on an interim basis. [50] see no reason in principle why court, faced with an application to vary, should not be able to make an interim order pending final resolution of the matter—in the appropriate case. The affidavit evidence may not rise to the level of certainty needed for final order, but the judge may nonetheless be satisfied that need, hardship and change of circumstances dictate that the judge should act immediately rather than waiting to test the evidence and make final determination. In such circumstances, it would be an exercise in formalism to insist that the matter be set down for hearing or trial in order to make final order—which may exacerbate hardship and surely will increase cost. The better interpretation of ss. 15.1 and 17 is to permit variation for child and spousal support orders on an interim basis leaving the development of the common law to determine when the discretion to do so should be exercised. [51] Since substantive orders can be made in the appropriate case in Chambers on an interim or on final basis—and that both an interim order and final order can be varied—the distinction between what is an interim and final order becomes less important in the Court of Queen’s Bench,[1] but it also becomes more difficult to determine whether an order is interim or final. The problem is compounded because many seemingly interim orders remain in place for many years and govern the whole of the parties’ relationship. The determination of whether an order is final remains important in case such as this where one party asserts that the matter in issue has already been decided. [52] Sometimes the answer to the question as to whether an order is an interim or final order will be patently clear because the order uses the word “interim” or the order refers to pending pre-trial conference or to the trial—or indicates its essential character as final order. The absence of appropriate descriptors, however, does not mean that the order is automatically interim or final. Whether an order is interim or final depends on all of the circumstances, including the terms of the order, the question to be resolved and where the parties are in the process of resolving their dispute. In some cases, it is also true that it is not necessary to determine whether an order is interim or final because the Court’s authority does not depend on the classification. In my view, this is one of those cases. [53] I will now turn to consider the nature of the orders in question and the authority that can be invoked to sustain their variation. [54] Once it has been determined that final order may be varied on an interim basis, it is quite clear that the 2008 Variation Order is an interim order. While Mr. Prescesky made an application to vary the 2006 Consent Child Support Order, which invoked the Court’s authority under s. 17, Smith J. expressed his order in the terms of an interim order: 1. The Consent Child Support Order granted by the Honorable Mr. Justice D.K. Krueger pronounced on the 29th day of June, 2006, is varied as follows: a) For the purposes of ongoing child support, the income of the Petitioner, DANIEL STEVEN PRESCESKY, is set at $55,000 per year, and he shall pay child support in the amount of $769 per month commencing December 1, 2008, until further order of the Court. 2. The Respondent, MANDY LEE PRESCESKY, may proceed to trial for the purposes of imputation. 3. The Petitioner, DANIEL STEVEN PRESCESKY, is directed to provide to the Respondent, MANDY LEE PRESCESKY, copy of his income tax return by June 30th of each year, commencing June 30, 2009, until further order of the court. (Emphasis added, Appeal Book, p. 198a) [55] The application before Smith J. was contested. Mr. Prescesky filed financial material in support of his submission that his income should be fixed at $1500 per month rather than the $85,000 per year, which he had been earning up to that time. Smith J. did not accept Mr. Prescesky’s evidence—hence the clause in the 2008 Variation Order leaving open for future resolution the question of the amount of Mr. Prescesky’s income. [56] The proper way to read the 2008 Variation Order is that it sets the amount of Mr. Prescesky’s income at $55,000 per year as an interim figure. It was contemplated when the 2008 Variation Order issued that the parties would revisit it. say this because there was no “imputation” issue with respect to the period before the 2008 Variation Order; the order is all about what effect the future would have on the amount of Mr. Prescesky’s income. [57] It is more difficult to determine the nature of the 2011 Variation Order because it was intended to reflect an agreement between the parties—which is usually the hallmark of final order. The 2011 Variation Order reads as follows: 1. Paragraph 1(a) of the Variation Order granted by the Honourable Mr. Justice R.S. Smith pronounced on the 4th day of December, 2008, is varied as follows: a) For the purposes of ongoing child support, the income of the petitioner, DANIEL STEVEN PRESCESKY, is set at an estimated $67,000 per year, and he shall pay child support in the amount of $950 per month commencing April 1st, 2011, until further order of the court. 2. On or before December 31st of each year commencing in 2011 DANIEL STEVEN PRESCESKY shall provide to the Respondent statement showing the value of the RESP’s for the two children of the marriage. (Emphasis added, Appeal Book, p. 214a) [58] There are only two changes to the 2008 Variation Order: estimating the income at $67,000, instead of setting it at $55,000 and adding clause to ensure Mr. Prescesky prove annually he is fulfilling an obligation assumed in the original 2006 Consent Child Support Order to contribute to his children’s RESPs. [59] While the 2011 Variation Order does not specifically address the question of what to do with respect to arrears arising before it, by virtue of its structure, which amends clause 1(a) only, it can be read as an amendment to the interim 2008 Variation Order that kept alive the possibility of Ms. Lantz pursuing an action in the Court of Queen’s Bench to impute further income to Mr. Prescesky and to recover any arrears arising from that exercise. Turcotte J. emphasized the following: “The 2011 variation order did not affect the obligation on Daniel to provide copy of his income tax return by June 30 of each year, nor did it purport to address the provision granting leave to Mandy to pursue the issue of income imputation to trial” (Prescesky, para. 52). Admittedly, there may be another way to read the 2008 Variation Order: i.e., that Ms. Lantz would be able to pursue the imputation of income at trial as result of Mr. Prescesky’s move to Saskatchewan only, but the 2011 Variation Order did not give effect to that interpretation. [60] As he did with the 2008 Variation Order, Mr. Prescesky filed “Variation Application” with the Court, but the only supporting material he filed to secure his order in 2011 is one page Memorandum to the Judge that contained no substantive provisions. The draft Order was the only document filed with the Memorandum. [61] Significantly, and as have indicated, Ms. Lantz in side letter agreed to forgo $7250 worth of arrears arising prior to the 2011 Variation Order. No mention is made of this in the 2011 Variation Order. The amount that Ms. Lantz was prepared to forgo does not cover all of the arrears for that period, which is some further evidence to support the decision of Turcotte J. that the 2011 Variation Order kept alive the right to pursue the difference between the actual arrears and what she had agreed to forgo. [62] The substance of what Mr. Prescesky filed with the Court of Queen’s Bench—the terms of the 2011 Variation Order and the circumstances surrounding it—all point to the 2011 Variation Order being an interim order, notwithstanding the parties’ prior agreement. [63] In my view, however, nothing turns on the question of whether the 2011 Variation Order is interim or final because of its terms. Every order, whether classified as interim or final, must still be construed. [64] In this case, the 2011 Variation Order amended previous interim order, which permitted Ms. Lantz to proceed to trial, and used the term “estimated” and continued to require Mr. Prescesky to provide his financial information annually. [65] The fact of the parties’ prior agreement is of no assistance to Mr. Prescesky. The parties did not reduce their oral agreement to writing—beyond what is reflected in the 2011 Variation Order. For her part, Ms. Lantz testified that she accepted something less to avoid the cost of litigation and she would insist upon term to that effect: And as result of that communication with Mr. Prescesky, what agreement, if any, did you arrive at with Mr. Prescesky? took him at his word at what his income would be, and we you know, was going through an emotional time with my husband, finances weren’t the greatest. So to avoid any more court costs, thought it would be in the best interest to try to come to an agreement with him and just end it so could go back into the home. (Trial transcript, p. T19) [66] The parties had some form of an agreement; but it was not sufficiently documented, its terms were in dispute at trial and they remain nebulous in this Court. If it were term of the oral agreement that Mr. Prescesky would not apply again to the Court of Queen’s Bench in order to avoid court costs—at least in the foreseeable future—he breached that agreement by bringing his third application seven months later. Moreover, the 2011 Variation Order states that it is subject to “further order of the Court.” [67] In these circumstances, it was reasonable for Turcotte J. to assume the authority to review the 2011 Variation Order in accordance with its terms. His conclusion in this regard is reinforced by the fact that the parties did not place before Allbright J. in 2011 the means to allow him to assess the agreement’s reasonableness. [68] The authority of judge to accept an amount less than the Guidelines amount must be considered in light of the judicial obligations imposed by s. 17(6.4) and (6.5) of the Divorce Act, which read as follows: Consent orders 17(6.4) Notwithstanding subsection (6.1), court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates. Reasonable arrangements 17(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines. [69] Having regard for these provisions and the Guidelines, Turcotte J. concluded the following: [39] Where child support order has been granted by the Court with the consent of the spouses, but in the absence of financial information to have allowed the Court the opportunity to assess the amount of spouse’s income and the appropriateness of the child support proposed under the consent order, such an order will be presumptively valid but nevertheless subject to future review and prospective or retroactive variation in appropriate circumstances. (Prescesky) [70] In support of this proposition, he relied on Jane Doe Alberta, 2007 ABCA 50 (CanLII) at paras 25–26, 278 DLR (4th) [Jane Doe], leave denied, 2007 CanLII 27569 (SCC), which in turn relies on such authorities as Richardson Richardson, 1987 CanLII 58 (SCC), [1987] SCR 857: “A spouse cannot barter away his or her child’s right to support in settlement agreement. The court is always free to intervene and determine the appropriate level of support for the child” (p. 869). [71] Mr. Prescesky distinguishes Jane Doe and the authorities on the basis that—in this case—the parties embodied their agreement in the 2006 Consent Child Support Order. Given the nature of the interests at stake, being the interests of the children in proper level of support, it is distinction without difference. [72] In short, I conclude that Turcotte J. did not err by concluding he had the authority to vary the 2011 Variation Order and to order Mr. Prescesky to pay arrears arsing before it and compelling him to pay the Guidelines amount for the period following it. B. Was it necessary to find a material change in circumstances before the 2011 Variation Order could be varied? [73] Subsection 17(4) of the Divorce Act requires that court varying child support order shall satisfy itself that change of circumstances, as provided for in the applicable Guidelines, has occurred. Section 14 of the Guidelines provides as follows: Circumstances for variation 14. For the purposes of subsection 17(4) of the Act, any one of the following constitutes change of circumstances that gives rise to the making of variation order in respect of child support order: (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). In D.B.S., the Court confirmed that the power to vary previously ordered award is triggered by material change in circumstances (see para. 66). Mr. Prescesky asserts that full disclosure was made in March of 2011—an order was consented to and issued in May of 2011—and thereafter there was no change in circumstances. [74] This is variation on the first argument. As have indicated, the parties’ agreement was not defined, the parties did not place any evidence before Allbright J., the consent order amended an interim order and the order was made subject to further order of the Court. In such circumstances, the resulting order remains completely vulnerable to further review by court possessed of all the evidence upon which to judge the issue of the adequacy of the support. In my view, these factors make Miller Miller (1992), 42 RFL (3d) 426 (Sask CA) distinguishable. By the terms of the 2011 Variation Order, the parties left to a future court the finalization of the amount of child support based on Mr. Prescesky’s income. Faced with this state of affairs and these words, the Court of Queen’s Bench retained the power to vary or rescind the order without searching for a change in circumstances. C. Did Turcotte J. err by finding Ms. Lantz had not been advised of changes in circumstances? [75] Mr. Prescesky points to his testimony where he said he had told Ms. Lantz about the changes in his situation or he had sent financial information with the children. He argues that this was reasonable approach to the issues dividing the parties and Turcotte J. should have accepted that evidence. It is clear, however, from the following paragraphs, that Turcotte J. found that Mr. Prescesky did not inform Ms. Lantz of the 2009 or 2010 changes: [46] Daniel acknowledged that he and Trisha did not stay in the Mayfair area to farm with his father. Rather, they moved back to Edson, Alberta in January or February 2009. Their return to Alberta was precipitated by number of events. He testified that he could not make the numbers work financially for him to continue farming. His .08 charges were resolved in December 2008 by stay entered by the Crown, facilitating the return of his driver’s license and his ability to return to work. Trisha’s father had died suddenly, and she needed to be closer to her mother to assist her. [47] Having regard for Daniel’s evidence before the Court set out in his affidavit sworn October 15, 2008, these changes in his circumstances were material and should have been disclosed. Further, the change in Daniel’s personal and employment circumstances occurring in early 2009 was clearly “change in circumstances” as contemplated by s. 17 of the Divorce Act and s. 14 of the Guidelines. The letter from his employer dated March 8, 2011 exhibited under tab 26 of R-1 indicates that Daniel resumed employment with that company on February 19, 2009. variation of the child support being paid by Daniel pursuant to the child support order as varied by the 2008 variation order would be warranted based on the increase in his income. No evidence was led that Daniel advised Mandy in early 2009 of the change in his personal and employment circumstances. Daniel’s failure to advise Mandy of these changes in his circumstances and to have adjusted his child support payable constitutes blameworthy conduct within the meaning established by D.B.S. militating in favour of retroactive review of his child support obligation. [49] As noted, para. of the child support order included provision requiring the parties to disclose their financial information annually with view that the child support payable would also be adjusted from year to year commensurate with the Guidelines. The variation order granted December 4, 2008 specified that Daniel was to provide Mandy with copy of his income tax return by June 30 of each year. do not believe Daniel when he testified that he provided his financial information to Mandy as required pursuant to either the child support order or the 2008 variation order. accept Mandy’s evidence that Daniel did not provide her with copies of his income information other than through these court proceedings or as noted in the exchange of correspondence from his lawyer to her lawyer set out in tabs 26 and 27 of R-1. (Emphasis added, Prescesky) [76] These are findings of fact Turcotte J. could make. In order for this to be sustainable ground of appeal, Mr. Prescesky would have to demonstrate “significant misapprehension of the evidence” (see Hickey Hickey, 1999 CanLII 691 (SCC), [1999] SCR 518 at para 11 [Hickey]). He is unable to overcome that hurdle. D. Did Turcotte J. err by failing to find unreasonable delay? [77] Turcotte J. also found that “there was no unreasonable delay on Mandy’s part in seeking a retroactive review of Daniel’s child support obligation” (para. 48). He made this finding while recognizing that she had to have known that Mr. Prescesky had moved. Given his earlier finding that she had not received disclosure, this finding regarding unreasonable delay is insulated from review in this case (see Hickey). V. Conclusion [78] The appeal is dismissed. It would seem appropriate to fix costs at the same amount as at trial: $1500. “Jackson J.A.” Jackson J.A. concur. “Jackson J.A.” concur. “Whitmore J.A.” Whitmore J.A. [1] What is an interim or final order for the purposes of appellate review remains an important issue, but that is not the issue am addressing on this appeal.

Family – Child Support – Arrears – Appeal The appellant appealed from the decision of a Queen’s Bench judge ordering him to pay retroactive child support to the respondent in the amount of $21,645. The order indicated that the period in question would include support from January 2009 to August 2012 (see: 2014 SKQB 334). An original support order was issued by consent in 2006. It required that the appellant pay the respondent $1,220 per month in child support and that the parties would exchange their financial information yearly in order to adjust the amount of child support payable. In 2008, the appellant applied to vary the order because he had lost his position and his income was reduced to $1,500 per month. In his affidavit, he swore that his annual income would be $18,000. The application was allowed and the amount of support reduced to $769 per month based upon the judge setting the appellant’s income at $55,000 and directing him to provide his financial information to the respondent each year. One month later in 2009, the appellant regained his former employment position and began earning as much as he had in 2008 but he continued to pay $769 per month without informing the respondent of the change in his circumstances. In February 2011, the respondent served a notice to disclose. The parties met and made an oral agreement that the appellant would pay $950 per month based upon the appellant’s claim that he was still financially strapped and the respondent acquiesced because she was unwilling to engage in further court battles with him. The appellant’s lawyer provided the respondent’s lawyer with financial information that showed that the former was earning a substantially higher income. The respondent also indicated to the appellant that she would forgo about $7,200 in arrears. The terms of the agreement were submitted to the court, without the financial information or the respondent’s forbearance to sue, and a variation order was issued based upon them. In July 2012, the respondent applied to vary the 2008 order and the 2011 variation order claiming arrears from January 2009. Eventually the issue of retroactive child support went to trial. The trial judge found that the appellant had not given the respondent financial information as was required and his failure to inform her of the material change in his circumstances in 2009 constituted blameworthy conduct. The appellant’s income for the years 2009 through 2012 was assessed by the court and the amount of arrears established. The appellant argued that: 1) the trial judge did not have the jurisdiction to vary the 2011 variation order. He maintained that the 2011 order was final and could not be varied on an interim basis; 2) it was necessary to find a material change in circumstances before it could be varied; 3) the respondent had been advised of the change in circumstances; and 4) the trial judge had erred in failing to find unreasonable delay on the part of the respondent. HELD: The appeal was dismissed. The court held with respect to each issue that: 1) a court can vary an interim or a final order on an interim basis for child support under the authority of ss. 15 and 17 of the Divorce Act. Although it might be necessary in some cases to determine whether an order is final or interim, it was not necessary to do so here because the nature of the terms of the orders in question and the circumstances surrounding the granting of the 2011 variation order. The trial judge had not erred in concluding that he had authority to vary it and to order the appellant to pay arrears before the agreement and compelling him to pay the Guideline amount for the period following it; 2) the terms of the 2011 order left it to a future court to finalize the amount of child support based upon the appellant’s income. Therefore the court retained the power to vary or rescind the order without searching for a change in circumstances; 3) the trial judge’s findings of fact on this point were supported by the evidence; and 4) the trial judge found that the respondent had not received disclosure and thus there had been no unreasonable delay.

4_2015skca111.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2008 SKQB 182 Date: 2008 04 24 Docket: Q.B.G. No. 421/2008 Judicial Centre: Regina BETWEEN: GENEVIÈVE CLOUÂTRE and THE OFFICE OF THE RENTALSMAN RESPONDENT Geneviève Clouâtre appearing on her own behalf Eric Hosie (agent) for the respondent, Art Hosie JUDGMENT ZARZECZNY J. April 24, 2008 [1] The tenant Geneviève Clouâtre appeals from the decision of the Hearing Officer rendered March 11, 2008 granting the landlord Art Hosie possession of her rental premises at suite “B”, 1909 Reynolds Street, Regina. [2] This self-represented tenant included, as grounds of her appeal, “procedural violations” and “misinformation as to the purpose of the hearing”. [3] The court’s detailed review of the application and proceedings before the Hearing Officer, including the written statements and communications sent to the rentalsman by the tenant, reveal the tenant’s concern over the short notice that she received of the hearing held March 11, 2008. This prompted the tenant to request, in writing, an adjournment so that she could make arrangements to personally attend the hearing. second issue revealed by the materials and presumably referenced by the other ground of appeal is the preoccupation, at the hearing, with evidence concerning the activities of the tenant’s boyfriend and the impact his actions had upon the premises and disturbances caused by him had upon another tenant and his daughter who also resided in the building. It was the tenant’s position that she was caught by surprise by this aspect of the hearing since no reference was made to this specific complaint in the landlord’s application. Her materials point out that had she been aware that this issue would be raised and focused upon she would have had submissions to make including the fact that the boyfriend no longer presented problem as he has since been and is presently incarcerated. REQUEST FOR ADJOURNMENT [4] The Residential Tenancies Act 2006, S.S. 2006, c. R-22.0001 (the “Act”) Hearing Notice was served on Ms. Clouâtre and came to her attention late Friday, March 7th one working day prior to the Tuesday, March 11th hearing. In letter the tenant sent to the rentalsman’s office Monday, March 10th she stated in part: ... It will be impossible for me to attend this first hearing as was not advised soon enough and could not make proper prior arrangements. ... also hope that you will contact me shortly to explain why such short notification was given to me... [5] The Decision of the Hearing Officer noted: The Notice of Hearing was properly served personally. The Tenant did not appear. ... No notice or warning is needed to proceed to hearing. ... The Tenant has further taken exception to being served with what she describes as one business day’s notice. The notice provisions of the Act require that the Tenant be served personally within three clear days of the hearing. The Landlord has satisfied these notice requirements. There is no other evidence that the Hearing Officer considered Ms. Clouâtre’s application for adjournment or dealt with it fairly or reasonably in the circumstances. Although the Director did advise Ms. Clouâtre that if she wished an adjournment she could call the hearing room or provide reasons in her written submission, the responsibility nevertheless lies with the Hearing Officer to receive and consider the adjournment that was clearly requested. [6] The decision of whether or not an adjournment should be granted is inherently discretionary. The decision should be taken with a view to what is necessary to ensure that justice is done between the parties. The discretion must be exercised judicially by the application of proper legal principles. (Darville v. The Queen,1956 CanLII 463 (SCC), [1956] 116 C.C.C. 113 (S.C.C.)). In the circumstances of this case that required consideration of the complexity of the issues, the tenant’s personal circumstances impacting on her ability to personally attend the hearing on short notice and any prejudice to the landlord if the requested adjournment were to be granted. [7] There is no indication that the Hearing Officer considered or weighed the prejudice that would occur to the landlord nor the circumstances of the tenant. [8] Insofar as the issues in the case are concerned the landlord’s claim, which is part of the Hearing Notice served on Ms. Clouâtre, included monetary claims for numerous items totaling $1,375.00, an order for possession based upon rental arrears of $225.00, rental loss of $450.00, and “nuisance/disturbance/offensive-illegal” (activities) including “building damage, pot smoking, pet damage (odor)”. This Hearing Notice raised numerous issues. It is understandable that tenant would require some reasonable time within which to make arrangements to attend any hearing that was scheduled, to inform herself about her legal position and the nature of the hearing process and obtain assistance or advice from the Director’s office or other persons in position to provide the same to her. [9] The three days notice given this tenant (including two weekend days of Saturday and Sunday) was insufficient to allow this tenant to make arrangements to personally attend. It is clear that she took the process very seriously and spent a considerable amount of time preparing a written response to the landlord’s claim as she knew it to be. She did not ignore the process. [10] In these circumstances find and conclude with respect, that the tenant’s request for an adjournment was not properly considered by the Hearing Officer. The disregard of the tenant’s request for an adjournment was unreasonable and inconsistent with the principle of access to justice that must guide judges and administrative tribunals alike in the conduct of their hearings. THE ISSUES AND EVIDENCE AT THE HEARING [11] Neither the Hearing Notice nor that portion of it outlining the landlord’s claim make any reference to the activities of the tenant’s boyfriend which apparently became primary focus of the evidence called at the hearing and subsequently the Decision rendered by the Hearing Officer. The evidence in that regard was presented by the landlord and Trevor Allen, fellow tenant in the building. [12] One could not discern, by reading the Hearing Notice or the landlord’s claim, that matters involving the tenant’s boyfriend would so occupy the evidence given at the hearing and Decision of the Hearing Officer. As the tenant subsequently advised, had she known this was an important if not central aspect of the case she would have explained that her boyfriend was now incarcerated and therefore no longer in position to create any further disturbances, cause any further damage and/or threaten any other occupants of the premises including Trevor Allen and his daughter. Since she was not personally present at the hearing she could not even respond to such evidence or new allegations since she was completely unaware of them. Indeed they were not commented on at all in the tenant’s written submissions which were quite properly received by the Hearing Officer and considered during the hearing. [13] The Hearing Officer, in accepting this “boyfriend related evidence” when neither the Hearing Notice nor the landlord’s complaint contained notice of it, breached the rules of natural justice and due process. The tenant could not have had notice of the nature and extent of the disturbance and damage allegations made related to her boyfriend nor would she have had any or adequate opportunity to respond to those allegations. Rules of procedural fairness and natural justice apply to the exercise by Hearing Officers and their conduct of hearings under the Act (see de la Sablonniére v. Sandhoff (1993), 1993 CanLII 9070 (SK QB), 108 Sask. R. 110 (Sask. Q.B.). [14] In that case McLellan J. observed at p. 113: [17] ... the notice to the tenant must contain sufficient particulars of the landlord’s claim so as to enable the tenant to prepare full and proper defence. If the notice fails to provide sufficient particulars the tenant is entitled to demand full and better particulars from the landlord. [15] These principles apply to this case on appeal. [16] find that both the failure to properly consider and grant the tenant the applied for adjournment in the particular circumstances of this case and the failure to provide the tenant with the particulars of the landlord’s claim constitute reversible error. In the result the appeal is allowed. This matter is returned to the Director to schedule a new hearing with the further direction that at least seven days clear notice be given of any new hearing date. [17] The landlord advised that the tenancy agreement, by its terms, was now at an end. The tenant responded that she had understood that she would be entitled, absent other circumstances, to stay in the premises until the end of April (April 30th) when her university course is ended. [18] This Court indicated to both parties that if these circumstances are the case and if the tenant should vacate the premises voluntarily at the end of April, as she advised the court she would do, all would be spared further time and inconvenience and the tenant or landlord should advise the office of the Director so that any new hearing scheduled can be cancelled. [19] The court directs that any appeal fees paid by her be returned to the tenant in this case. J. T. C. Zarzeczny

The tenant appeals the decision of the Hearing Officer granting her landlord a possession order of her rental premises. The tenant received notice of the hearing late on Friday when the hearing was set for Tuesday morning. She immediately requested an adjournment as she was unable to attend personally. The tenant also submits that the notice failed to disclose a significant aspect of the complaint, namely the conduct of her boyfriend. HELD: Appeal allowed and the matter returned to the Director to schedule a new hearing with at least 7 days clear notice to be given of the date. The decision to grant an adjournment is inherently discretionary and should be made with a view to what is necessary to ensure justice is done between the parties. This should include consideration of the complexity of the issues, the tenant's personal circumstances affecting her ability to attend in person on short notice and any prejudice to the landlord if the request is granted. There is no evidence that any of this was considered by the Hearing Officer. Three days (including a weekend) is not sufficient time to make arrangements and prepare for any hearing. It is clear that the tenant took the matter seriously and spent considerable time preparing written responses to the landlord's claim as she knew it to be. On the issue of sufficiency of the Notice, the Court found that while the Notice outlined many issues, it failed to disclose issues relating to her boyfriend. Since these issues were only discussed at the hearing the tenant was unable to attend she was not able to advise in person or in writing that her boyfriend was now incarcerated and the issue resolved. The Hearing Officer, in accepting evidence from the landlord about the boyfriend when neither the Hearing notice nor the landlord's complaint contained notice of it, breached the rule of natural justice and due process. The reasonableness standard of review applies here.

b_2008skqb182.txt

R.D. LAING QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 395 Date: 2013 11 05 Docket: Q.B.J. No. 68 of 2012 Judicial Centre: Battleford BETWEEN: HER MAJESTY THE QUEEN and PAUL MARY LEROUX Counsel: Michel L.J. Piché for the Crown Paul Mary Leroux on behalf of himself JUDGMENT ACTON J. November 5, 2013 [1] The accused has been charged with 14 counts of indecent assault and three counts of gross indecency against 14 individuals, all of whom were boys who attended the Beauval Indian Residential School between January 1, 1959 and December 31, 1967. The residential school was located at Beauval in the Province of Saskatchewan. [2] The accused was considered the golden-haired boy of the priests and nuns and was very popular with the boys at the Beauval Indian Residential School. The accused had an ability to interact and bond with the people in his life. In spite of lack of significant post-secondary education and the loss of both of his parents at the age of 15, the accused had an amazing aptitude to relate to the boys at the school in manner which brought out their talents as both athletes and singers. [3] During his time at the school, from September 1959 to June 1962 and September 1963 to June 1967, he developed the intermural hockey, competitive fastball and softball teams, and the Beauval Warriors, which was the regional champion hockey team through most of the years that he developed and coached the team. During these years he also started the boys’ choir, developing the musical and vocal talents of many of the boys at the school. The choir travelled to and performed at various villages and towns in the vicinity. All of the members of the choir were especially proud to appear on television in Prince Albert at Christmas time in 1964 and cut an LP recording of their songs. [4] The boys at the school looked up to the accused, who was the dorm supervisor, as choirmaster, sports coach, mentor, friend, and parental figure in their lives. [5] Most of the boys started school at the Beauval Indian Residential School at the age of six, seven or eight. This was generally the first time they had been away from home, where they had lived in small log cabins or tents, where their father was hunter, trapper and fisherman, and where the means of travel was dog sled in the winter and boat in the summer. Their families’ food supply was from the land. Most often they came from family with numerous siblings and large extended family. [6] The huge four-storey brick dormitory with as many as 80 boys from ages six to 15 sharing one dormitory, one large bathroom and one playroom with lockers until 1963, and then sharing two dormitories with 30 or 40 boys, all between the ages of six and 15 years, was, to say the least, overwhelming to these young boys. [7] To most of them, the accused was the one person who seemed to care for them and with whom they bonded. [8] It is apparent that the accused truly did care for them and in many ways these boys were the most important people in his entire life. [9] However, as time progressed and the closeness of the relationships of the accused with many of the boys in his care grew closer, there became times when the relationship with various boys crossed the line from appropriate and acceptable behaviour to become acts which were totally inappropriate. They were known at the time as acts of indecent assault and gross indecency. In today’s terminology, these acts relate to offences now known as sexual assault and sexual interference. [10] Most of the boys affected were between the ages of 11 and 15. By the time they realized what was occurring, the boys found there was no one to turn to for help. Some felt like prisoners of the accused. [11] few of the victims attempted to tell one of the priests or nuns what was happening. However, they were not believed and generally punished for making up such stories. As one of the victims stated, the accused was the golden-haired boy of the nuns and the priests and to them he could do no wrong. Others knew that there was no possibility of obtaining help from the priests or nuns and knew that even though they would be with their parents at Christmas (unless they were snowed in) and with them in July and August, their parents would not believe them either or understand what they were talking about. [12] Beauval was residential school in which the girls resided in one half of the building and the boys in the other half but attended co-educational classes. There was clear disconnect between the perceptions of life at school and life in the residence. The former teachers who testified were quite certain that no one was ever punished for speaking their native tongue or discouraged from doing so. The boys testified (all of whom are over 50 and many over the age of 60) adamantly that they were punished for speaking their own language and were only allowed to speak English. [13] It became apparent to the court that while in class, the children were expected to speak English and only English and to speak Cree or Dené was an act of disobedience. [14] However, in the playground, in the dorms, on picnics with the dorm supervisors and anywhere other than the classroom, speaking to your fellow students in Cree or Dené was permissible. In fact, some of the missionary priests were relatively fluent in either Cree or Dené, depending on which reserves they had spent time. Often part of Mass was delivered in Cree or Dené, with one of the hymn books being in English and one being in Cree and Dené. [15] Discipline was not really an issue at the school and particularly with the accused due to his relationship with the boys that he supervised. Occasionally, an individual might receive strap on the hand or slap with ruler, but normally discipline outside the classroom consisted of either kneeling on the floor by the ping-pong table for 15 to 20 minutes or missing one-half of the Sunday night movie. The Sunday night movie was highlight of the week for all of the children at the school. [16] To small and often homesick boy, slap with the ruler or the requirement to kneel by the ping-pong table for period of time often seemed like cruel and unusual punishment, which carried over through 50 years of memory to become brutal and cruel acts of physical abuse. [17] There was evidence presented to the court of memories of: having to stand out in the -30˚ cold without proper clothing and being locked out for considerable period of time; having to get up at 5:00 a.m. every day to serve Mass; or having your clothes taken away on the first day at school and not returned to you, or returned to you at the end of the school year when you had outgrown them. [18] We all have childhood memories of mistreatment of one kind or another which may crystalize in our minds as the years pass. There was evidence before the court that in all likelihood, being locked out in the cold without proper clothing for hours on end was actually being outside with winter clothing on, but having the door locked for 15 minutes while the older boys mopped the floor of the playroom without the small boys running through and tracking up the hardwood floor. [19] Mass was mandatory on Sundays and few days during Lent. Otherwise, it was optional and seldom attended except for whoever volunteered to be the altar boys. The altar boys were awakened at 6:30 a.m. (which may have felt like 5:00 a.m.) to serve Mass at 7:00 a.m. There were rewards and recognition at the end of the school year for attending Mass more often than others. There was protocol whereby if boys volunteered to be altar boys and learned Latin, they could work their way up to being Knights of the Altar. [20] There are numerous photos of boys wearing their beaded jackets, moccasins and beaver mitts in spite of the accusations by some that these were taken away and never returned. [21] The normal procedure upon arrival at the school was for all of the boys’ clothes to be marked with indelible ink with their locker number so that when their clothes were sent to the laundry and were returned folded and left placed on the ping-pong table, each boy could find his pile of clothes by his locker number. [22] It is also apparent that some of the testimony of being strapped at least 25 times on each hand every day for three years was an extreme embellishment which increased significantly in both numbers and vivid recollection over the last 50 years. [23] Many of the victims attempted (with considerable success) to put these acts of sexual violation out of their minds for much of their adult lives. So much so that when the RCMP was sending letters out to former students in the late 1990s to determine if anyone had been sexually molested by the accused, only one individual responded. This was the result of the accused having been recently convicted of such activities with young men between the ages of 14 and 18 in the Northwest Territories where the accused had taken up employment after leaving Beauval. The individual was E.G. In spite of E.G.’s persistence, he was eventually advised by the RCMP that it did not have sufficient evidence to prosecute and the matter was being dropped. [24] Then in approximately the year 2000, many of the complainants received letters from law firm indicating that if they had been abused at residential school, they could in all likelihood obtain damages through the court system. Almost all of the complainants stepped forward and provided details of the various and numerous acts of sexual assault or sexual interference committed upon them by the accused. This was followed by an examination for discovery, and an IAP application with details of alleged abuse and an eventual out-of-court cash settlement. [25] At no time did anyone report this to the RCMP. Then in approximately 2009, Constable Joy, who had been the rookie RCMP officer transporting the accused to and from his trial in the Northwest Territories, had worked his way up to be with special unit in Prince Albert, Saskatchewan. He came across the name of Paul Leroux. Constable Joy took on personal project of attempting to locate individuals who attended Beauval Indian Residential School when Paul Leroux was there and who may have been subject to acts of sexual assault. Constable Joy spent months going back again and again and again to these individuals who refused to talk to him about such matters. Some of these individuals had lived their entire lives without bringing the matter totally before the public other than the civil lawsuits, examinations for discovery and IAP applications, all of which were settled out of court. Needless to say, most of these individuals were extremely reluctant when in their 60s, having been married for most of their adult lives, having had children and now grandchildren, to stand up in public courtroom explaining sexual acts that were committed upon them when they were 11 to 15 years of age. Very few of the complainants felt any need at this point to get revenge or prosecute the accused. Some indicated to Constable Joy that they felt no obligation to the public to punish the accused further. He was now 72 years of age, and had been sentenced to 10 years in jail in the late 1990s for such acts. Why not leave him alone? [26] Undeterred, Constable Joy continued to return and return and return, trying to get the individuals to talk about things that they had put out of their minds many years ago and had no need to make public at this stage in their lives. [27] Eventually Constable Joy succeeded in accumulating the 14 complainants and had the charges laid in 2011. There was then the preliminary hearing in 2012 and now the trial in the fall of 2013. [28] It is quite understandable that the testimony of each of the complainants varied substantially among each other and also among their own sworn statements. Often the original statement of claim was full of significant details and allegations. The examination for discovery often varied significantly from the statement of claim, with allegations made in the statement of claim completely forgotten in the examination for discovery and new allegations presented as well as contradictions between the two. [29] This was further exasperated by the preliminary hearing which again was often substantially different from either of the first two. Testimony at the actual trial often did not correlate with the preliminary hearing, the examination for discovery and the statement of claim. In fact, on occasion, there was complete denial of some of the primary allegations brought forth in the original statement of claim, examination for discovery and IAP application. [30] It is accepted that after 50 years, and this trial reaffirms, that acts which occurred in our childhood often become embellished and distorted and blamed for many of our personal shortcomings or personal failures later in life. [31] The complainants were in attendance for varying periods at varying times at the residential school. Some were there as early as 1957 and remembered when the accused arrived and left while he was still there. Others arrived after he was there and left about the same time. Others arrived toward the end of his tenure and left later. Some obtained Grade education and then left at the age of 13 to live life of alcohol and drug addiction, violence and crime, incarceration, assaults and sexual assaults on spouses, children and grandchildren. Others excelled in hockey, others excelled in choir, others excelled in both. Many showed great scholastic and artistic talents. Some obtained their Grade and went out to live rather conventional and stable family life. Others went on to other schools after obtaining their Grade or to attend other residential schools or boarding houses in larger towns to obtain their Grade 12 education. [32] Some, although not near as many as were capable, had the advantage of pursuing further post-secondary education and becoming teachers and other professionals. [33] There was much evidence before the court of physical and sexual abuse of many of the complainants by priests, nuns or other students. The allegations are not limited to the accused. With over 50 years having passed since the occurrence of some of these events and the contradictory evidence provided by individuals on four different occasions, it is extremely difficult to glean what is the factual truth of who did what to whom and when, as opposed to the “now” perception of those past events. [34] Some of the complainants were very quiet, soft-spoken, respectful individuals who obviously lived quiet life and had family support. This was apparent by their attendance in the gallery at court. Others were fine, well spoken, outstanding individuals who spoke clearly and concisely. Some had family support there. Others had clearly asked to have the family support remain outside the courtroom until their testimony was completed. Other individuals were loud, disrespectful of others, ignored direction and protocol and had had neither stable life nor family, but rather one filled with crime, addictions, violence, incarceration and instability. All gave their evidence to give to the best of their ability. Prior Applications [35] Originally, this trial was set to be heard by judge and jury. The court was required to make decision respecting pre-trial application for the admission of similar fact evidence by the Crown. This decision was rendered September 16, 2013, dismissing the application. R. v. Leroux, 2013 SKQB 336 (CanLII), [2013] S.J. No. 588 (QL) [36] Just prior to commencement of the trial, there was re-election to judge alone. At the close of the case for the Crown, there was an application for the court to reconsider the issue of similar fact evidence as it relates to evidence provided in each of the separate counts of the indictment to allow the similar facts to be used to support the credibility of the complainants on the other counts in the indictment. [37] The court reserved its decision respecting this application and undertook to render decision on this issue at the time of its final judgment. [38] Although the complainants attended the Beauval Indian Residential School at varying times for varying periods and obtained varying degrees of education, there are number of commonalities also known as similar fact evidence. These included: 1) The initial touching involved the accused placing his hand under the covers and fondling the victim’s genitalia over top of his pyjamas. 2) These activities occurred at night after the boys were asleep, normally between 9:30 or 10:00 p.m. and 1:00 a.m. 3) The touching would escalate on subsequent occasions to the accused waking the complainant from sleep and telling him to come to his office/bedroom. 4) The accused would take down the victim’s pyjamas, fondle his penis, and would ask the victim to stroke his penis so that each would eventually have an erection. 5) As the number of times that the victim was awakened and taken to the office during the night would increase to the point where the accused and the victim were performing fellatio on each other and eventually laying on the bed with the accused behind the victim with his penis between the victim’s legs simulating intercourse until ejaculation or performing acts of anal intercourse on the victim. 6) Often the victims were members of the choir or the Beauval Warriors midget hockey team. [39] The court does accept that there is less likelihood of moral prejudice, reasoning prejudice and propensity reasoning in judge alone trial as opposed to jury trial. [40] However, as stated by the Supreme Court in R. v. Handy, 2002 SCC 56 (CanLII), [2002] S.C.R. 908, at para. 146: 146 Further, there is risk, evident in this case, that where the “similar facts” are denied by the accused, the court will be caught in conflict between seeking to admit what appears to be cogent evidence bearing on material issue and the need to avoid unfairness to the right of the accused to respond. The accused has limited opportunity to respond. Logistical problems may be compounded by the lapse of time, surprise, and the collateral issue rule, which will prevent (in the interest of effective use of court resources) trials within trials on the similar facts. Nor is the accused allowed to counter evidence of discreditable conduct with similar fact evidence in support of his or her credibility (as discussed in Sopinka, Lederman and Bryant, supra, at s. 11.74). Thus the practical realities of the trial process reinforce the prejudice inherent in the poisonous nature of the propensity evidence itself. [41] The renewed application by the Crown is for the evidence that each of the 14 complainants to be considered and allowed is similar fact evidence on each of the other counts to bolster the credibility of each complainant. This is far too broad. To allow the evidence of all 14 complainants to apply to all 17 charges is far too prejudicial to the accused and reduces the ability of the court to compartmentalize charges, leading to propensitory reasoning. [42] The court takes note of the recent decision of R. v. Jesse, 2012 SCC 21 (CanLII), [2012] S.C.R. 716. In that decision, the Supreme Court of Canada allowed the Crown to introduce similar fact evidence showing that in 1995, jury had convicted the accused of sexual assault. There was high degree of similarity between the 1995 sexual assault and the one for which the accused was on trial and the similar fact evidence would be circumstantial evidence going to the issue of identity. In the current case before the court, identity is not an issue, however as stated by Moldaver J. writing for the majority of the Supreme Court of Canada at para. 52: 52 ... prior conviction constitutes strong proof that the similar act conduct in question occurred. In that sense, it has greater probative value than an unproven allegation (see, e.g., D.M. Paciocco and L. Stuesser, The Law of Evidence (rev. 5th ed. 2008), at pp. 144-147). While conviction may be harder to respond to than an unproven allegation, that does not make the conviction inadmissible. Just because piece of evidence operates unfortunately for an accused does not of itself render the evidence inadmissible or the trial unfair (see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] S.C.R. 670, at pp. 724-25, per La Forest J., dissenting on other grounds). [43] The court takes particular note of decision of Binnie J. in R. v. Handy, supra, wherein he states at paras. 73 The requirement to identify the material issue “in question” (i.e., the purpose for which the similar fact evidence is proffered) does not detract from the probative value/prejudice balance, but is in fact essential to it. Probative value cannot be assessed in the abstract. The utility of the evidence lies precisely in its ability to advance or refute live issue pending before the trier of fact. 74 The issues in question derive from the facts alleged in the charge and the defences advanced or reasonably anticipated. It is therefore incumbent on the Crown to identify the live issue in the trial to which the evidence of disposition is said to relate. If the issue has ceased to be in dispute, as for example when the fact is admitted by the accused, then the evidence is irrelevant and it must be excluded: R. v. Clermont, 1986 CanLII 26 (SCC), [1986] S.C.R. 131, at p. 136; R. v. Bosley (1992), 1992 CanLII 2838 (ON CA), 18 C.R. (4th) 347 (Ont. C.A.), at p. 360; R. v. Proctor (1992), 1992 CanLII 2763 (MB CA), 69 C.C.C. (3d) 436 (Man. C.A.), at p. 447; R. v. Hanna (1990), 1990 CanLII 11027 (BC CA), 57 C.C.C. (3d) 392 (B.C.C.A.); and B. (L.), supra, at p. 50. The relative importance of the issue in the particular trial may also have bearing on the weighing up of factors for and against admissibility. Similar fact evidence that is virtually conclusive of minor issue may still be excluded for reasons of overall prejudice. 75 The “issues in question” are not, it should be emphasized, categories of admissibility. Their identification is simply an element of the admissibility analysis which, as stated, turns on weighing probative value against prejudice. ... 76 The principal driver of probative value in case such as this is the connectedness (or nexus) that is established between the similar fact evidence and the offences alleged, particularly where the connections reveal “degree of distinctiveness or uniqueness” (B. (C.R.), supra, at p. 735). As stated by Cory J. in Arp, supra, at para. 48: ... where similar fact evidence is adduced to prove fact in issue, in order to be admissible, the trial judge should evaluate the degree of similarity of the alleged acts and decide whether the objective improbability of coincidence has been established. Only then will the evidence have sufficient probative value to be admitted. [44] It is also noted by Binnie J. in para. 78 that the issue is actus reus as is the issue in the current case before the court: 78 The issue in the present case is not identification but the actus reus of the offence. The point is not that the degree of similarity in such case must be higher or lower than in an identification case. The point is that the issue is different, and the drivers of cogency in relation to the desired inferences will therefore not be the same. As Grange J.A. correctly pointed out 20 years ago in R. v. Carpenter (1982), 1982 CanLII 3308 (ON CA), 142 D.L.R. (3d) 237 (Ont. C.A.), at p. 244: The degree of similarity required will depend upon the issues in the particular case, the purpose for which the evidence is sought to be introduced and the other evidence. [45] Binnie J. goes on further to set out the factors to be considered in connecting similar facts to circumstances, whereas in the current situation, the Crown wishes to use the similar fact evidence to support the credibility of each of the individual complainants. Binnie J. states at paras. 82 The trial judge was called on to consider the cogency of the proffered similar fact evidence in relation to the inferences sought to be drawn, as well as the strength of the proof of the similar facts themselves. Factors connecting the similar facts to the circumstances set out in the charge include: (1) proximity in time of the similar acts: D. (L.E.), supra, at p. 125; R. v. Simpson (1977), 1977 CanLII 1142 (ON CA), 35 C.C.C. (2d) 337 (Ont. C.A.), at p. 345; R. v. Huot (1993), 1993 CanLII 8652 (ON CA), 16 O.R. (3d) 214 (C.A.), at p. 220; (2) extent to which the other acts are similar in detail to the charged conduct: Huot, supra, at p. 218; R. v. Rulli (1999), 1999 CanLII 3712 (ON CA), 134 C.C.C. (3d) 465 (Ont. C.A.), at p. 471; C. (M.H.), supra, at p. 772; (3) number of occurrences of the similar acts: Batte, supra, at pp. 227-28; (4) circumstances surrounding or relating to the similar acts (Litchfield, supra, at p. 358); (5) any distinctive feature(s) unifying the incidents: Arp, supra, at paras. 43-45; R. v. Fleming (1999), 1999 CanLII 18921 (NL CA), 171 Nfld. P.E.I.R. 183 (Nfld. C.A.), at paras. 104-5; Rulli, supra, at p. 472; (6) intervening events: R. v. Dupras, 2000 BCSC 1128 (CanLII), [2000] B.C.J. No. 1513 (QL) (S.C.), at para. 12; (7) any other factor which would tend to support or rebut the underlying unity of the similar acts. 83 On the other hand, countervailing factors which have been found helpful in assessing prejudice include the inflammatory nature of the similar acts (D. (L.E.), at p. 124) and whether the Crown can prove its point with less prejudicial evidence. In addition, as stated, the court was required to take into account the potential distraction of the trier of fact from its proper focus on the facts charged, and the potential for undue time consumption. These were collectively described earlier as moral prejudice and reasoning prejudice. 84 This list is intended to be helpful rather than exhaustive. Not all factors will exist (or be necessary) in every case. comparable approach is utilized in other common law jurisdictions, including England (see Director of Public Prosecutions v. Kilbourne, [1973] A.C. 729 (H.L.), at p. 758), and in the United States (see C. B. Mueller and L. C. Kirkpatrick, Federal Evidence (2nd ed. 1994 Supp. 2001), vol. 2, at s. 161; United States v. Enjady, 134 F.3d 1427 (10th Cir. 1998), certiorari denied, 525 U.S. 887 (1998)). [46] The court has also noted the references made in paras. 90 and 91 which state: 90 On the facts of B. (C.R.), the majority concluded that the accused was shown to have situation specific propensity to abuse sexually children to whom he stood in parental relationship, and there was close match between the “distinct and particular” propensity demonstrated in the similar fact evidence and the misconduct alleged in the charge, although even the majority considered the admissibility to be “borderline” (p. 739). Similar fact evidence is sometimes said to demonstrate “system” or “modus operandi”, but in essence the idea of “modus operandi” or “system” is simply the observed pattern of propensity operating in closely defined and circumscribed context. 91 References to “calling cards” or “signatures” or “hallmarks” or “fingerprints” similarly describe propensity at the admissible end of the spectrum precisely because the pattern of circumstances in which an accused is disposed to act in certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. The issue at that stage is no longer “pure” propensity or “general disposition” but repeated conduct in particular and highly specific type of situation. At that point, the evidence of similar facts provides compelling inference that may fill remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken (in this case) by the jury. [47] As in the current situation, it is not the sex acts themselves or the surrounding circumstances which are highly distinctive. Cogency is derived from the repetition rather than the distinctiveness. [48] Considering the factors to be considered, the court does find as follows: 1) Proximity and time of the similar acts The majority of the alleged acts occurred after the accused returned from Gravelbourg in September of 1963 and occurred between then and his departure in June of 1967. 2) Extent to which other acts are similar in detail to the charge conduct The acts are extremely similar in that they all involve commencement by touching of the victims by the accused while in their bunks at night when the lights are turned out. They escalate to being summoned by the accused to his office after all of the boys are asleep. These incidents then involve fondling the victim and encouraging the victim to fondle the accused, resulting in erections and ejaculations. Many of the assaults progressed to fellatio and attempts at anal intercourse. 3) Number of occurrences of similar acts There appears to have been in the range of 15 or more victims with anywhere from one to approximately 30 occurrences with each individual. 4) All of the individuals were students at the Beauval Indian Residential School and all under the supervision of the accused, many of whom were members of the boys’ choir or the Warriors hockey team or both. 5) Any distinctive features unifying the incidents See para. 49(2). 6) Intervening events All but one of the victims did not disclose the acts committed by the accused until approximately 2000, being anywhere from 35 to 40 years after the occurrence of the events. 7) The accused developed close personal relationship with each of the victims. [49] Considering these factors and the statement of Binnie J. in Handy, supra, at para. 134 In the usual course, frailties in the evidence would be left to the trier of fact, in this case the jury. However, where admissibility is bound up with, and dependent upon, probative value, the credibility of the similar fact evidence is factor that the trial judge, exercising his or her gatekeeper function is, in my view, entitled to take into consideration. Where the ultimate assessment of credibility was for the jury and not the judge to make, this evidence was potentially too prejudicial to be admitted unless the judge was of the view that it met the threshold of being reasonably capable of belief. the court does allow the similar fact evidence as set forth in para. 38 as similar fact evidence in each of the complaints with the other as circumstantial evidence which as gatekeeper may take into consideration allowing as much or as little weight to it as consider appropriate. [50] My decision is based on the fact that the gatekeeper and the trier of fact are the same individual in judge alone trial. As stated in my earlier decision hearing the original application, my decision would be entirely different if the matter was before jury. The Charges [51] The accused is charged with 14 counts of indecent assault, which were committed at or near Beauval in the Province of Saskatchewan in the time period between January 1, 1959 and December 31, 1967, upon 14 separate individuals: G.J.W., H.J.A., J.E., T.F., G.A.G., E.G., L.A.G., D.L., J.R.M., N.G.M., M.J.M., M.V.P., G.T., G.R.M. [52] In addition, the accused is charged with acts of gross indecency during the same time, at the same place and with three of the same complainants, namely: T.F., M.J.M., G.R.M. [53] The court must apply the law that existed between 1959 and 1967 at which time the following sections of the Criminal Code, S.C. 1953-54, c. 51 applied: 148. Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped. 149. Every one who commits an act of gross indecency with another person is guilty of an indictable offence and liable to imprisonment for five years. 132. Where an accused is charged with an offence under section 138, 141 or 148 in respect of person under the age of fourteen years, the fact that the person consented to the commission of the offence is not defence to the charge. [54] In the period between 1959 and 1967, the courts in Canada considered acts of gross indecency to be acts which are marked departure from decent conduct and crime against public morality which included but was not limited to anal intercourse, fellatio, and homosexual acts between two male persons of any age and whether consenting or not. Ingredients of the Offence [55] The offence of indecent assault as defined in s. 148 consists of any deliberate application of force that by its nature or circumstance has the quality of indecency. This is equivalent to various forms of what we now know as sexual assault, sexual touching or sexual interference. Under s. 132, if the person is under the age of 14 years, consent is not defence. [56] Some of the complainants were over the age of 14 years and under the age of majority being 21 years. All of the complainants were under the age of 18 years. [57] For ease of understanding, the Supreme Court of Canada has stated in R. v. Handy, supra, at para. 118, short and concise definition of sexual assault which states: 118 conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed the actus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching. The mens rea is the intention to touch, knowing of, or being reckless of, or wilfully blind to, lack of consent: R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] S.C.R. 330, at para. [58] For the complainants 14 years of age and over, if the person is in position of trust or authority, sexual touching by the person in authority is now the crime of sexual exploitation. The offence of gross indecency has no equivalent in the current Criminal Code, R.S.C. 1985, c. C-46. As stated earlier, an offence whereby all homosexual acts between consenting adults were made illegal, to amount to gross indecency the act must have constituted marked departure from decent conduct and public morality. Consent is no defence. [59] It is also noted that there is distinction in law between consent and submission. Every consent involves submission but every submission does not involve consent. An agreement to engage in sexual activity by reason of an individual’s position of trust or exercise of authority may constitute submission but not consent. The relationship of authority is relevant factor to determine whether complainant does in fact consent or merely submits. [60] It is apparent from the facts as stated above that each of the complainants identified the accused as the individual involved. The incidents occurred at Beauval in the Province of Saskatchewan. Each of the individuals viewed the accused as person in position of trust and authority. [61] The court has also considered the question of collusion or collaboration between the witnesses or the tainting of evidence by the actions of Constable Joy so as to raise the question as to whether the testimony is that of the complainant or the police officer. [62] After careful consideration of the fact that many of the complainants have lived their adult lives in close proximity to each other and have interacted on regular basis and encouraged each other to file claims for financial recourse, find no evidence to suggest collusion or collaboration among the complainants such that it would undermine the reliability of any particular witness’s testimony. Nor do find evidence that despite his good intentions, Constable Joy tainted their evidence by use of his knowledge of the trials in the Northwest Territories in which the accused was convicted of similar acts, and his continued pursuit over many visits to have the complainants step forward and make formal complaints against the accused. [63] It is important to remember that it is the responsibility of the Crown to prove each of the elements of the offence. There is no obligation on the accused to prove that any of the elements of the offence did not exist. [64] The first and most important principle of law applicable to every criminal case is the presumption of innocence. The accused enters the proceedings presumed to be innocent and the presumption of innocence remains throughout the case unless the Crown on the evidence put before me satisfies me beyond reasonable doubt that he is guilty. The Crown bears the burden of proving his guilt. The guilt must be proved beyond reasonable doubt. These rules are inextricably linked to the presumption of innocence and ensure that no innocent person is convicted. There is no burden on the accused to prove he is innocent. He does not have to prove anything. [65] reasonable doubt is not an imaginary or frivolous doubt. It is not based upon sympathy for or prejudice against anyone involved in these proceedings. Rather, it is based on reason and common sense. It is doubt that arises logically from the evidence or from an absence of evidence. [66] It is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such standard would be impossibly high, however, the standard of proof beyond reasonable doubt falls much closer to absolute certainty than to probable guilt. must not find the accused guilty unless am sure he is guilty. Even if believe he is probably guilty or likely guilty, that is not sufficient. In the circumstances, must give the benefit of the doubt to the accused and find him not guilty because the Crown would have failed to satisfy me of his guilt beyond reasonable doubt. [67] Credibility of the witnesses is of major significance in this trial. Reasonable doubt applies to the issue of credibility. may believe witness, disbelieve witness or may not fully believe or disbelieve one witness or group of witnesses. If have reasonable doubt about the accused’s guilt arising from the credibility of the witnesses, then must find him not guilty. The accused testified on his own behalf and must as well assess his testimony the same as any other witness keeping in mind the credibility of witnesses. may accept all, part or none of the accused’s evidence. If believe his testimony that he did not commit the offences charged, must find him not guilty. Even if do not believe his testimony and it leaves me with reasonable doubt about his guilt or about an essential element of the offences charged, must find him not guilty. If do not know who to believe, it means have reasonable doubt and must find him not guilty. Even if his testimony does not raise reasonable doubt about his guilt or about an essential element of the offence, if after considering all of the evidence am not satisfied beyond reasonable doubt of his guilt, must acquit. [68] In deciding the credibility of Crown witnesses, must consider that most of the complainants issued statement of claim involving the accused somewhere between the period from 1998 to 2004. The complainants testified under oath at the examinations for discovery, many of which occurred in 2002. Most of the complainants filed an IAP claim and have received financial settlements respecting their statement of claim and the IAP claim. The complainants also provided evidence under oath at the preliminary inquiry in 2012. Each of the complainants has now testified before me at the trial. This testimony relates to incidents which occurred when the complainants were boys at the Beauval Indian Residential School approximately 50 years ago. must determine what effect any of the differences have on my overall assessment of the witnesses’ credibility. They may have huge effect or no effect or somewhere in between. Not every difference is important. must consider the extent and nature of any difference. Was it central point or something peripheral? must consider any explanation the witness has given and whether the explanation was satisfactory. must also consider the complainants’ explanations as to why when they first revealed the alleged complaints against the accused in approximately 2000, they did not report the offences to the RCMP until, in the case of most complainants, 2009 and only after considerable coaxing from Constable Joy. [69] have heard 14 complainants testify about events that occurred when each of them was child. must remember that persons giving testimony in court, of whatever age, are individuals whose credibility and evidence must be assessed by reference to standards appropriate to their mental development, understanding and ability to communicate. When generally speaking, when adults testify about events that occur when they were child, their credibility should be assessed according to standards that are applicable to them as adult witnesses. But when the evidence of such witnesses relates to events that occurred in their childhood, then the presence of inconsistencies, such as those relating to time and location, should take into account the age of the witnesses at the time those events happened. must examine the testimony of each of the 14 complainants separately where it deals with events that happened when he was child by taking into account the circumstances as child at the time of those events. [70] The only way may use the evidence of extrinsic similar facts of one complainant to support the credibility of another complainant is if the evidence discloses distinctive pattern of conduct of the accused and whether it would defy coincidence that two or more people independently would lie or be mistaken in their testimony about the conduct of the accused. If there is distinctive pattern, then may use the evidence in assessing the complainant’s credibility. If do not find distinctive pattern of conduct, then must consider each count separately to determine if the evidence in relation to the count proves the guilt of the accused beyond reasonable doubt. [71] The elements of the offence of indecent assault are as follows: 1) The accused is the person who actually committed the offence of indecent assault. 2) The offence of indecent assault occurred at the time and place set out in the indictment, namely Beauval, Saskatchewan, between January 1, 1959 and December 31, 1967. 3) The accused applied force to the complainant directly or indirectly. 4) The accused intentionally applied force to the complainant in circumstances which had the quality of indecency. 5) The complainant was under the age of 14 years at the time of the alleged offence or that the complainant was the age of 14 years or older and did not consent to the application of force or did not consent validly due to the accused inducing the complainant to engage in the activity by abusing position of trust, power, or authority. 6) The complainant is male person. [72] With respect to the charge of gross indecency, the elements are: 1) The accused is the person who actually committed the offence of gross indecency. 2) The offence of gross indecency occurred at Beauval, Saskatchewan, between January 1, 1959 and December 31, 1967. 3) The acts of gross indecency were with the complainant either consensually or otherwise. 4) The acts committed are marked departure from decent conduct expected of the average Canadian in the circumstances which existed at the time and crime against public morality which includes but is not limited to anal intercourse, fellatio and other homosexual acts between two male persons of any age, whether consenting or not. [73] will now proceed to comment on each of the respective counts separately. Count Indecent assault on G.J.W. [74] G.J.W. was born in 1950 and attended Beauval Indian Residential School from September 1957 to June of 1966. G.J.W. testified at his examination for discovery that the first incident happened when he was nine years old. In his evidence to Constable Joy, he indicated he was seven, eight or nine years old and that the sexual assaults happened every week for number of years. At the end of the examination for discovery, he indicated that when he left at the age of 15½, it had happened few times. At the trial he indicated the indecent assaults never happened on the top floor, but rather in the second floor dorm. He remembers the accused calling him to the bedroom in the night and offering him coffee. He alleges the accused played with his penis until he got an erection. He was 10 or 11 years old. He tried to push the accused away. G.J.W. was often scared it would happen again when the accused would walk through the dormitory late at night. He indicated at trial that he was fondled five or six times in his bed. He testified that he could have been 11 or 12 years old. G.J.W. was sure that it was at least the fall of 1963 after the new construction. He would have been 13 years of age. He also indicated that the accused touched him in the bunks and played with his penis five or six times between the time he was 13 and 15 years of age. [75] G.J.W. was reserved, straightforward and credible witness. He may have been mistaken about the earlier years and whether he was indecently assaulted in the dormitory on the fourth floor and whether it was an elderly priest to whom he delivered lunch. However, his evidence respecting being fondled in his bunk by the accused five or six times in the final two years when he was between the ages of 13 and 15½ is most credible. A conviction shall be entered to Count 1. Count Indecent assault on H.J.A. [76] H.J.A was born in 1953 and attended Beauval Indian Residential School from 1960 to 1969, obtaining Grade 9. H.J.A. testified that the accused would take him to his bedroom late at night, give him candies, lay him on his bed, fondle his penis and anus and put his finger up his anus. This would make it sore. He testified that the accused had him sleeping beside him in the accused’s bedroom five or six times, being every second night for month. He also testified that the accused took pictures of him and other former students in the shower. At the preliminary hearing, he testified that he slept with the accused five nights in row, but that the accused was fully dressed. In his examination for discovery he indicated that the accused had sex with him for month or month and half. He indicated to Constable Joy this occurred in 1962 and 1963, and he did not remember whether he touched the accused. Whereas at the preliminary he said that he did not touch the accused. In the examination for discovery he testified the accused took his jeans off part way through and kissed H.J.A. on the mouth. In the examination for discovery he also indicated that the accused had anal intercourse with him, touched his genitalia and he was required to touch the accused. H.J.A. told Constable Joy that the accused put his hand on the penis area of his pants for half minute and then H.J.A. left. [77] The testimony of H.J.A. was sufficiently inconsistent in his earlier sworn statements at the examination for discovery and preliminary hearing in comparison with the testimony at trial that the court has reasonable doubt as to the guilt of the accused respecting this count. This count is dismissed. Count Indecent assault on J.E. [78] J.E. was born in 1949 and attended school at Beauval Indian Residential School from September of 1962 until June of 1965 when he finished his Grade 6. When he commenced Grade he was 13 years of age. J.E. testified that he was only in the accused’s office once when the accused took him there in the middle of the night, fondled him, gave him beer, told him to take off his clothes, took him to his bed and had anal intercourse with J.E., which made him bleed. He believed that he was probably 15 years of age at the time. J.E. was very credible witness. accept his evidence with respect to the indecent assault. A conviction shall be entered on Count 3. Counts and Indecent assault and act of gross indecency on T.F. [79] T.F. was born in 1950. He attended Beauval Indian Residential School from September of 1957 to June of 1968 when he obtained Grade 8, and then took Grades and 10 in the “Anne of Green Gables Building” by the rectory. He attended North Battleford Composite High School for his Grades 11 and 12. T.F. made many statements in his testimony which the court accepts that he fully believes. However, many of these statements were proven to be factually untrue, particularly the cause of death of one P.J. and the name of the other individual who won the trip to Quebec. However, the court does accept his testimony respecting three boys being in the accused’s office, being provided with an alcoholic drink, shown pornographic magazines of naked women, being taken into the accused’s bedroom one at time, having his pants pulled down and fondled. Also, that T.F. rebuffed further advances by the accused. The court does enter a conviction to Count 4. [80] Based on the evidence accepted by the court, the court has reasonable doubt respecting the commitment of an act of gross indecency under Count 5 and does dismiss Count 5. Count Indecent assault on G.A.G. [81] G.A.G. was born in 1949 and started school at the Beauval Indian Residential School in fall of 1957 and attended until June of 1964 when he obtained his Grade 8. The witness was quite honest and open with the fact that he did not remember details of much that happened 53 years ago. The alleged indecent assault was thought to be fatherly act at the time. It was not until he was much older and had discussed matters with other individuals who were filing claims did he come to believe that it was an indecent assault. [82] The court has reasonable doubt as to whether or not there was an indecent assault or fatherly touching by supervisor in G.A.G.’s early years at the school. The court does dismiss Count 6. Count Indecent assault on E.G. [83] E.G. was born in 1946. He attended Beauval Indian Residential School from August of 1954 to 1963. E.G. then attended other residential schools until he obtained his Grade 12 in 1967. Much of the peripheral evidence presented by the accused was obviously believed by him, but which the court does not accept. The court does accept the testimony of the witness relating to him having to masturbate the accused on more than one occasion and the attempted but failed attempt at sodomy. [84] It is noted that E.G. is the first individual to file complaint with the RCMP and did so prior to receiving any correspondence from law firm suggesting he may be entitled to financial compensation. [85] The court does enter a conviction on Count 7. Count Indecent assault on L.A.G. [86] L.A.G. was born in 1957. He went to Beauval Indian Residential School from September 1963 to June 1973. The witness has good memory for his supervisors and which floor dormitory he was on, being the top floor, for the time during which the accused remained at Beauval. However, during that period of time, the accused was the supervisor on the second floor, not the fourth floor. Even though the accused did not supervise on the fourth floor, when L.A.G. woke up in the night he saw someone sitting in the office with the light on on the fourth floor, so it must have been the accused. The testimony of L.A.G. is vague on both details and number of times and strong on speculation. The court has a reasonable doubt respecting this count and does therefore dismiss this count. Count Indecent assault on D.L. [87] D.L. was born in 1953 and commenced school at Beauval Indian Residential School in September of 1960, leaving in December of 1965. He started at the age of seven and graduated with Grade education. Much of the testimony of the complainant is inconsistent with earlier sworn testimony and although am quite sure the witness believed the truth of what he was testifying in court, much of it leaves considerable doubt about the reality, leaving the court with reasonable doubt. Therefore, Count 9 is dismissed. Count 10 Indecent assault on J.R.M. [88] J.R.M. was born in 1951. He commenced school at the Beauval Indian Residential School in September of 1959 and continued to attend school there until June of 1965. He was in the boys’ choir for five years commencing approximately six months after his arrival and played hockey in the intermural level. Although the witness was clear about much of what happened while at the residential school, the court has reasonable doubt about an indecent assault having occurred, there being lack of evidence of touching for sexual purpose. Therefore, the court does dismiss Count 10. Count 11 Indecent assault on N.G.M. [89] N.G.M. was born in 1951. He started school at Beauval Indian Residential School in September of 1959 and continued until June of 1966. Although the records indicate he has Grade 8, his recollection is that he only had Grade and left at Christmas at the age of 13½. The testimony of N.G.M. was quite credible, particularly with respect to T.F. and him when they were 11 years of age, being mixed drink which they referred to as martini in the office of the accused. Then the boys went to bed and later that evening, the accused stopped at his bunk, fondled his genitals under the blanket and told him to come to his room, where the accused fondled him and he fondled the accused. The witness was very credible and believable and the court accepts his testimony. Therefore a conviction is entered on Count 11. Counts 12 and 13 Indecent assault and gross indecency on M.J.M. [90] M.J.M. was born in 1949 and commenced school at Beauval Indian Residential School in 1956. He was then diagnosed with tuberculosis and was in sanitarium for 1957, 1958 and 1959, returning in the fall of 1960, obtaining his Grade in June of 1967. He then continued his education in Meadow Lake, obtaining Grade 11 and subsequently commercial art course at Red River College. M.J.M. was very straightforward and credible witness. He told of being given alcohol by the accused, was shown pornographic books to get aroused and then taken to his bedroom, where the accused involved him in both fellatio and anal intercourse on numerous occasions. It seemed like once month for three years. accept this evidence as to the facts he related. A conviction will be entered to both Counts 12 and 13. Count 14 Indecent assault on M.V.P. [91] M.V.P. was born in 1949 and attended Beauval Indian Residential School from September of 1956 to June of 1965, obtaining Grade education. M.V.P. was member of both the boys’ choir and the Warriors hockey team of which the accused was the choir master and the hockey coach. Although M.V.P. had discrepancies in his testimony respecting peripheral issues, he was most believable and credible witness. Whether there was an indecent assault of M.V.P. in the shower or whether there was only an attempt, the court accepts the evidence of M.V.P. that there was in fact an indecent assault in the bedroom of the accused when M.V.P. was approximately 15 years of age, and I find the Crown has proven the charge beyond a reasonable doubt and a conviction shall be entered to Count 14. Count 15 Indecent assault on G.T. [92] The Crown has accepted that it has not proven the actus reus. Count 15 is dismissed. Counts 16 and 17 Indecent assault and gross indecency on G.R.M. [93] G.R.M. was born in 1952. After spending two years in school at Onion Lake, he attended Beauval Indian Residential School from September 1962 to the end of 1963 before he returned to the Onion Lake Residential School for 1964 and 1965, returning to Beauval in September of 1965 until June of 1967. He received his Grade education. G.R.M. was very impressive, straightforward, and credible witness. The court has no doubt that G.R.M. was fondled by the accused and was involved in the acts of fellatio and mutual masturbation with the accused on numerous occasions after October of 1965 until they both left Beauval in June of 1967. A conviction is entered on both counts. [94] In summary, convictions were entered on 10 counts and 7 counts were dismissed. [95] In closing, wish to remind all of you that criminal trial must deal with specific facts on specific allegations. [96] This is not broad-ranging inquiry of abuses which may have occurred in the residential school system or even strictly in the Beauval Indian Residential School during the period 1959 to 1967. Much of this has already been done and most of the victims involved in this trial have already been through the other forums and obtained some degree of financial compensation. [97] wish to remind you that criminal trial is not healing process. It is not equipped to heal victims of crimes. [98] Victims can only be healed through their own efforts combined with the understanding, cooperation and assistance of their family and friends, supplemented by efforts of the entire local community. [99] As stated many times herein, criminal trial deals with specific offences and the only question is whether the facts respecting each alleged offence have been proven beyond reasonable doubt. [100] My findings in the verdicts rendered herein are my findings as to the facts that have been proven beyond reasonable doubt.

HELD: The Court found the accused guilty of 10 counts and 7 counts were dismissed.

b_2013skqb395.txt

J. Dated: 20011015 2001 SKCA 105 Docket: 306 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Cameron, Gerwing Jackson JJ.A. HER MAJESTY THE QUEEN and TILAK R. MALHOTRA COUNSEL: Mr. W. Dean Sinclair for the Crown Mr. Mark Brayford, Q.C. for the Respondent DISPOSITION: On Appeal From: QBCA 27 OF 2000, J.C. of Prince Albert Appeal Heard: October 12, 2001 Appeal Allowed: October 12, 2001 Written Reasons: October 15, 2001 Reasons By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Jackson GERWING J.A. (orally) [1] The accused was convicted by a Provincial Court judge of having care and control of a motor vehicle while impaired, contrary to s. 253(a) of the Criminal Code. The Provincial Court judge, after trial, had acquitted him of a charge under s. 253(b) of the Code. On appeal, the Court of Queen’s Bench judge set aside the conviction and ordered an acquittal. It is from that that the Crown now appeals. [2] The accused testified that in an approximately 50 minute period after 6:45 p.m., he consumed three drinks of scotch, each of which contained two to three ounces of liquor. He then returned to his office leaving, according to his testimony, at about 7:55 p.m. While he was driving back his cell phone rang and as he answered he realized he was going to have an accident. At the time he was driving on the wrong side of the street and collided with vehicle travelling in the opposite direction. The only reason the vehicle did not collide head-on was that the driver of the other car stopped his vehicle. There was differing testimony by the two drivers as to the speed, but the trial judge found this merely to be one more indicia of lack of accurate reflection by the accused. He found as follows: 27. There are several matters which in my view contradict the accused’s assertions that his ability to concentrate and his judgment were unaffected, and which also indicate some lack of accurate recollection. Swan says that the accused was going “quite fast” before the collision, and if he had not stopped, it would have been “head on”. The accused says that he was doing 20 kilometres per hour and that he had “almost stopped”. 28. The accused attributes the observed unsteadiness in his walk to his hip injury, rather than to any impairment. It is quite possible that the bad hip, combined with poor footing, contributed to the observed “very staggered” walk and it is also quite possible that the alcohol he had consumed played part. 29. Examples of impaired judgment on the part of the accused, apart from the decision to drive to his office after having consumed three rather large drinks of scotch, include the attempt to access his cell phone while approaching an intersection, having passed vehicle on his side of the road, on slippery up-hill road which he described as “problem road” any time in the winter. In fact he admitted that this was lack of good judgment on his part. 30. The accused asking Swan what he was doing on the wrong side of the road similarly indicates lack of judgment. His explanation for this behaviour seems to me to be ex post facto rationalization. 31. Impairment of ability to concentrate is indicated by the fact of driving on the wrong side of the road whilst attempting to access the cell phone. Dr. Rockerbie admitted in cross-examination that the ability to concentrate on two tasks simultaneously might be affected by alcohol at lower levels of blood alcohol concentration, but added in re-examination by defence counsel that driving tasks are not affected until levels of 140 150 milligrams are reached. 32. When asked in re-examination by Crown whether fatigue can exacerbate the effects of alcohol, Dr. Rockerbie replied, “nothing can be said about that”. interpret this in the context of his evidence that small amounts of alcohol can be stimulative and actually improve driving performance for some drinkers. It is matter of law that where driving impairment results from combination of fatigue and consumption of alcohol, the offence is complete; see R. v. Pelletier, (1989) Q.B.C.A. #59, (Sask.) and cases referred to therein. [3] The Queen’s Bench judge on appeal initially stated the correct standard of appellate review, that is whether the evidence was reasonably capable of supporting the trial judge’s conclusion, and went on to hold: [5] The trial judge was required to determine whether the appellant was impaired at the time of the accident at 8:00 p.m. cannot interfere with the trial judge’s conclusions that Cst. Schluff properly made the breathalyzer demand at 8:31 p.m., nor that accepting Cst. Schluff’s evidence that the appellant showed signs of impairment was unreasonable. Oppositely, by the time that Cst. Schluff made the demand, the appellant was showing the classic signs of impairment, including slurred speech, staggering and the need to urinate. Furthermore, the trial judge was correct in concluding that the appellant was impaired and becoming more so during the time at the police station. This is in keeping with the expert testimony of Dr. Rockerbie that the alcohol was rapidly being absorbed into the bloodstream. [6] But the crucial issue was whether the Crown proved beyond reasonable doubt that the appellant was impaired at 8:00 p.m., the time of the accident. find that the evidence raised reasonable doubt as to the appellant’s condition, and that reasonable doubt ought to have been exercised in the appellant’s favour. The witness that encountered the appellant at 8:00 p.m. was Steven Swan, the driver of the vehicle that the appellant ran into. Mr. Swan saw the appellant get out of his vehicle, walk over to Mr. Swan’s vehicle and speak to Mr. Swan. Aside from the awkwardness that resulted from the appellant accusing Mr. Swan of causing the accident, Mr. Swan noticed nothing to lead him to suspect that the appellant had been drinking, no less being impaired. It took approximately fifteen to twenty minutes for the police officers to arrive, and it was some minutes after that Cst. Schluff first spoke to the appellant and then observed the appellant walking. [7] Given the trial judge’s acceptance of the expert evidence that the blood alcohol was rapidly rising, and was in the range of .68 to.81 at 8:00 p.m., along with Mr. Swan’s observation that he did not observe any impairment, the trial judge ought to have concluded that the defence raised reasonable doubt. This is reversible error. The conviction cannot stand. The appellant is acquitted on the count of impaired driving. [4] In our view, the appellate court judge while stating the correct standard of review, did not in fact apply it. In her analysis she made inaccurate assessments of the evidence and the conclusions of the trial judge thereon. The acquittal because of reasonable doubt on the .08 charge did not have, expressly or inferentially, included in it finding by the trial judge that he accepted the testimony that the accused’s blood alcohol was between .068 and .081 at the time of driving. He did not, in fact, so accept. Further, it is inconsistent with the facts and the judgment of the trial judge on those facts, which are his sole province, to say, as the appellate court judge did, that Swan did not see any indicia of impairment. As noted, Swan saw the respondent driving his car in the wrong lane of traffic at, what he testified to be, relatively high speed. This was accepted among the indications of impairment of the respondent by the trial judge. [5] Given these failures in analysis, it is not necessary for us to deal with an argument now presented by the Crown that the appellate court judge also erred with respect to the nature of the charge when she focussed on post-driving conduct when the charge was care and control. On the analysis above alone, the verdict of the appellate court judge must be set aside. We are of the view that on the appropriately posed question, was there sufficient evidence on which properly instructed jury could have convicted on the charge here, the answer is unequivocally yes. There was probative evidence on each material point of the charge, it was carefully analyzed by the Provincial Court judge and his acceptance of critical points on each essential of the charge is set out in his judgment. [6] For these reasons, the appeal must be allowed, the judgment of the Court of Queen’s Bench is set aside and the judgment of the Provincial Court is restored.

The accused was convicted of having care or control of a motor vehicle while impaired (Criminal Code s.253(a)) but acquitted on the charge under s.253(b). The Provincial Court trial judge did not accept the accused's testimony that his blood-alcohol concentration was between .068 and .081 at the time of driving. On appeal the Queen's Bench judge set aside the conviction and ordered an acquittal. HELD: The appeal was allowed. The Queen's Bench judgment was set aside and the Provincial Court trial judgment was restored. While the appellate judge stated the correct standard of review, he did not in fact apply it and made inaccurate assessments of the evidence and conclusion of the trial judge.

d_2001skca105.txt

M.T. MEGAW QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 217 Date: 2018 07 31 Docket: QBG 202 of 2018 Judicial Centre: Saskatoon BETWEEN: DOUGLAS SOLLOWS ARCHITECT INC. and THE KEY FIRST NATION Counsel: Jeffrey M. Lee, Q.C., and Katelyn J. Jones for the plaintiff Nathan Phillips for the defendant FIAT ROTHERY J. July 31, 2018 [1] On March 15, 2018, the plaintiff, Douglas Sollows Architect Inc. [Sollows], obtained default judgment against the defendant, The Key First Nation [Key], totalling $102,703.62 plus costs assessed at $1,598.50. Sollows had sued Key for monies owed pursuant to an agreement to provide professional architectural services. [2] Pursuant to Rule 10-13 of The Queen’s Bench Rules, Key’s counsel now applies to set aside that default judgment and seeks leave to file defence in the form of the draft filed with the court July 19, 2018. Because the Sheriff holds funds seized under the enforcement proceedings following the entering of the default judgment, Sollows’ counsel undertakes to request the Sheriff to continue to hold those funds pending further order of the court. [3] Counsel for Key submits that the default judgment should be set aside because Sollows has entered judgment that is greater than the amount due. Counsel refers to Beaver Lumber Company Hopfauf, 1932 CanLII 192 (SK CA), [1932] WWR 357 (WL) (Sask CA) at para 11, in support of this principle: 11 It is clear from number of authorities that it is on the allegations in the pleadings that default judgment must be signed: McCoy v. Laberge, 1929 CanLII 134 (SK CA), [1929] W.W.R. 154, 23 Sask. L.R. 544; Wagar v. Little (No. 2) 1923 CanLII 672 (AB CA), [1924] W.W.R. 112; Ellam v. Acadia Trust Co. Ltd. (1914) W.W.R. 1083; Ewing v. Latimer (1903) Terr. L.R. 499. The judgment having been signed for too much, it should be set aside ex debito justitiae: McCoy v. Laberge, supra; Fawell v. Andrew, [1917] W.W.R. 4001, 10 Sask. L.R. 162; Wagar v. Little, supra; Anlaby v. Praetorius (1888) 20 Q.B.D. 764, 57 L.J. Q.B. 287; Hughes v. Justin, [1894] Q.B. 667, 63 L.J.Q.B. 417. [4] find no merit in the submissions of Key’s counsel that Sollows has calculated interest too high because of “rounding error”. Per diem rates ought to be stated in dollars and cents. However, Key’s counsel is entirely correct that Sollows has calculated two extra days of interest on one of the invoices. The time frame from March 22, 2016 to March 15, 2018 is total of 723 days, not 725 days. Thus, two extra days of interest at per diem of $8.54 amounts to an overcharge of $17.08. As a matter of right, Key is entitled to have the default judgment set aside. [5] In exercising my judicial discretion under Rule 10-13, I must also conclude that Key is entitled to have the default judgment set aside on its merits. [6] The applicable principles in considering Rule 10-13 are the same as the former Rule 346. As stated by Caldwell J.A. in Ballentyne Benard, 2012 SKCA 23 (CanLII) at paras 11-13, 385 Sask 280, the court’s exercise of judicial discretion is based upon the following factors: [11] The reference to “wilful blindness” may have its source in Klein v. Schile (1921), 1921 CanLII 107 (SK CA), 59 D.L.R. 102, an earlier decision of this Court, where Lamont J.A., setting out the circumstances in which judicial discretion will be exercised in favour of an applicant under what is now Rule 346, suggested that the delay in setting aside the default judgment should not be “wilful” (at p. 103): The circumstances under which court will exercise its discretion to set aside judgment regularly signed are pretty well settled. The application should be made as soon as possible after the judgment comes to the knowledge of the defendant, but mere delay will not bar the application, unless an irreparable injury will be done to the plaintiff or the delay has been wilful. Tomlinson v. Kiddo, 1914 CanLII 139 (SK CA), Sask. L.R. 132, W.W.R. 93, 29 W.L.R. 325; Mills v. Harris, Sask. L.R. 114. The application should be supported by an affidavit setting out the circumstances under which the default arose and disclosing defence on the merits. Chitty’s Forms, 13th ed., p. 83. It is not sufficient to merely state that the defendant has good defence upon the merits. The affidavits must show the nature of the defence and set forth facts which will enable the Court or Judge to decide whether or not there was matter which would afford defence to the action. Stewart v. McMahon, Sask. L.R. 209, W.L.R. 643. If the application is not made immediately after the defendant has become aware that judgment has been signed against him, the affidavits should also explain the delay in making the application; and, if that delay be of long standing, the defence on the merits must be clearly established. Sandhoff v. Metzer, W.L.R. 18. [12] review of the jurisprudence indicates this Court has consistently followed Klein v. Schile, see: Hamel v. Chelle (1964), 1964 CanLII 384 (SK CA), 48 W.W.R. 115 (Sask. C.A.); Warner Construction Co. v. Wood River (Rural Municipality) (1979), 1979 CanLII 2230 (SK CA), 105 D.L.R. (3d) 370 (C.A.); Bank of Montreal v. Pauls (1984), 1984 CanLII 2419 (SK CA), 35 Sask. R. 204 (C.A.); Wicks v. Wicks (1990), 1990 CanLII 7728 (SK CA), 87 Sask. R. 139 (C.A.); and Rimmer v. Adshead [2002 SKCA 12]. These cases interpret Klein v. Schile as having established the four requirements subsequently referred to in Strange v. Saskatchewan [2008 SKQB 481], including the requirement to provide “satisfactory explanation” for failure to respond to the claim. However, in Rimmer v. Adshead, at para. 60, Cameron J.A. added that “the merit of the matter is the dominant consideration provided the delay not be accompanied by irreparable harm.” Of these cases, only Warner Construction Co. v. Wood River (Rural Municipality) made any reference to the idea of “wilful delay” as reason, in itself, to deny the application. [13] While one might imagine circumstances in which “wilful” failure to defend an action might constitute sufficient reason to deny an application to set aside default judgment, as noted, the fundamental principle relevant to the exercise of judicial discretion in these cases is that it is necessary to ensure that the application of the Court’s rules and principles does not violate the principles of fundamental justice and equity. As Cameron J.A. pointed out in Rimmer v. Adshead, the applicable principle requires consideration of all the circumstances and strong reason to deny defendant his or her day in court when he or she can demonstrate an arguable defence to the claim and the delay has not caused the plaintiff irreparable harm. [Emphasis added] [7] Sollows’ counsel submits that Key is not entitled to have the default judgment set aside because of the “wilful” failure of its chief and one band councillor to defend the action, even though they had been warned of the consequences of not responding to the action. Sollows’ counsel also argues that there is no defence upon the merits. However, Sollows’ counsel concedes that Sollows will not suffer irreparable harm if the default judgment is set aside and it must pursue its claim against Key. [8] The facts surrounding the response to this Statement of Claim are unique. Sollows’ counsel wrote letter to Chief Rodney Brass on December 18, 2017, demanding payment for the architectural services. Additional information of the debt was provided to Chief Brass by correspondence of December 19, 2017 and January 11, 2018. Sollows’ process server properly served Angela Desjarlais, one of Key’s band councillors, with the Statement of Claim on February 15, 2018. [9] After service of the Claim on Angela Desjarlais on February 15, 2018, and following telephone conversation between Chief Brass and Sollows’ counsel on February 20, 2018, Sollows’ counsel provided further particulars to Chief Brass on February 21, 2018 and warned of the pending deadline to defend the action. [10] Sollows’ counsel noted the action for default on March 14, 2018, and took out default judgment on March 15, 2018. On March 21, 2018, Sollows’ counsel received letter from Maurice Law Firm advising they had been retained to represent Key and requesting that the action not be noted for default without reasonable notice. Sollows’ counsel sent Maurice Law Firm correspondence dated March 22, 2018, advising they were unable to grant that undertaking because default judgment had already been entered against Key. [11] The unique aspect of this action is what happened on March 21, 2018. Some members of Key had brought an application before the Federal Court of Canada on November 16, 2017, seeking an order setting aside the election of the chief and band councillors conducted on October 1, 2016. Two of the respondents elected on October 1, 2016 were Chief Rodney Brass and band councillor Angela Desjarlais. Barnes J. rendered decision on March 21, 2018 (cited as 2018 FC 325 (CanLII)) annulling the election and ordering that new election be conducted. Barnes J. specifically referred to the misconduct of Rodney Brass and Angela Desjarlais (among others) that sufficiently corrupted the October 1, 2016 election. [12] Thus, between March 21, 2018 and June 12, 2018, Key was without chief and band councillors. In the election conducted June 12, 2018, Clarence Papequash was elected chief and Clinton Key and David Darrell Cote were two of the five councillors elected. [13] Chief Papequash and councillor Clinton Key swore affidavits in this application stating that they first learned of this default judgment on June 22, 2018. Chief Papequash states that he immediately sought legal counsel. Key’s present counsel sent correspondence to Sollows’ counsel on June 27, 2018, explaining that the positions of chief and band councillors had been vacant between March 21, 2018 and June 12, 2018. The default judgment had just come to the attention of the new band council on June 22, 2018. [14] Because Sollows’ counsel refused to set aside the default judgment, Key’s counsel brought this application on July 19, 2018. [15] Sollows’ counsel concedes that Key’s electoral turmoil may be an explanation for Key’s delay in defending the case between March 21, 2018, and June 12, 2018. But, that does not explain what should be characterized as wilful failure to defend in the time frame between February 15, 2018 and March 14, 2018. Key was warned of the deadline that was looming. [16] I cannot accept that a time frame of 28 days is sufficiently long for the court to prevent Key from defending the action. That is only seven days past the date Sollows was permitted to note the action for default. Given that Key’s then counsel responded to the action soon after default judgment was entered, this delay in defending the action is insufficient to deny Key its day in court. [17] Sollows’ counsel also argues that Key has not demonstrated an arguable defence to the claim. Sollows filed affidavit evidence to show that there had been contract for professional services with Key. However, band councillor Cote swears that no contract was ever made with Sollows in the time frame he was chief, from December 2014 to October 1, 2016. Councillor Key and Chief Papequash swear that they had been band councillors since the October 1, 2016, election. But, they were regularly excluded from band council meetings. [18] This evidence forms the foundation for an arguable defence. In paragraph of the draft Statement of Defence, Key pleads: 5. In the alternative, THE KEY FIRST NATION pleads and relies upon the Indian Act in general, and in particular section 2(3)(b). At no point in time was the purported contract alleged by the Plaintiff authorized or executed at duly called and convened meeting of the Band Council of THE KEY FIRST NATION, or was anyone authorized to enter into same on its behalf. Pursuant to section 2(3)(b) of the Indian Act, any such purported contract alleged by the Plaintiff is deemed to not bind THE KEY FIRST NATION. [19] The basis of this defence is outlined in W. Downer Holdings Ltd. Red Pheasant First Nation, 2012 SKQB 468 (CanLII) at paras 25-26, 34-36 and 42-43, 408 Sask 110, where Scherman J. stated: 25 Section 2(3) of the Indian Act provides as follows: 2(3) Unless the context otherwise requires or this Act otherwise provides, (a) power conferred on band shall be deemed not to be exercised unless it is exercised pursuant to majority of the electors of the band; and (b) power conferred on the council of band shall be deemed not to be exercised unless it is exercised pursuant to the consent of majority of the councillors of the band present at meeting of the council duly convened. 26 Counsel for Red Pheasant argues that the signatures of six councillors on the settlement agreement do not bind the Band because, under s. 2(3) of the Act, powers conferred on Council are deemed not to be exercised unless done pursuant to the consent of the majority of the councillors present at meeting of the Band Council duly convened. In support of this interpretation of the legislation, they rely on the decisions in Heron Seismic Services Ltd. v. Peepeekisis Indian Band (1990), 1990 CanLII 7500 (SK QB), 87 Sask. R. 66, [1990] S.J. No. 495 (QL) (Q.B.), upheld on appeal at (1991), 1991 CanLII 7963 (SK CA), 86 D.L.R. (4th) 767, [1991] S.J. No. 553 (QL) (C.A.); and Brass v. Peepeekisis Cree Nation No. 81, 2002 SKQB 194 (CanLII), 221 Sask.R. 4, upheld on appeal at 2004 SKCA 40 (CanLII), 254 Sask. R. 3. 34 At no Red Pheasant Band Council meeting was anyone authorized to negotiate and conclude the settlement agreement in question. Accordingly, whether apply the law as stated by the Saskatchewan Courts (as am bound to do) or accept the logic of Moir J. [Maloney Eskasoni Indian Band, 2009 NSSC 177 (CanLII)], in which find significant merit, the result is the same. Even under the Moir J. approach to the interpretation of s. 2(3)(b), the power of Council was not exercised “pursuant to the consent of majority of the councillors present at meeting”. Therefore, the settlement agreement is unenforceable because no one was authorized, by consent of majority of the councillors present at Band Council meeting, to enter into such an agreement on behalf of the Band. 35 The fact that majority of the councillors signed the settlement agreement does not salvage the issue for the plaintiffs since the language of the statute expressly requires the power of Council to be exercised “pursuant to the consent of majority of the councillors present at meeting”. There was no meeting as required by the legislation. 36 This is not distinction of little significance. For band councils and host of other decision-making bodies including municipal councils, decisions cannot be made without the matter being brought before meeting of the body. This permits all members of council who might disagree the opportunity to voice their opposition and reasons for their opposition. The required meeting and debate might well change the views of those who came prepared to approve. One of the strengths of the democratic process is the opportunity to debate matters to be decided and to convince others. The requirement for matters to be dealt with and approved at meeting of the body, ensures public transparency relating to the decisions of governing bodies. In each of the cases relied upon by the plaintiff, the band or the band council had the opportunity to debate the matter and made decision to authorize its chief to proceed. 42 The legislation provides that Council may only exercise its power “pursuant to the consent of majority of the councillors present at meeting”. The logic and the law relating to ostensible authority cannot supplant this clear statutory direction as to how and when band councillors are entitled to make decisions. To permit majority of Council to bind the Band on the principle of ostensible authority when they have made decision outside of Council meeting would be permitting common law principle of contract law to supplant the express direction of Parliament. 43 It should be noted that the fact of being member of collective decision-making body, means no one councillor can be viewed as having the ostensible authority to bind the whole of council. Councillors can only act collectively and thus one or several counsellors do not have ostensible authority to make decision. chief or band manager by virtue of their position may, in commercial matters, have the ostensible authority to bind. All councillors (which includes the chief) may arguably have ostensible authority to bind. But individual councillors or collection of councillors less than all do not. In reaching these conclusions, acknowledge the logic and merit of Moir J.’s reasoning, but cannot adopt because of the existing precedent in this jurisdiction and for the additional reasons have outlined. [20] Thus, non-compliance with s. 2(3)(b) of the Indian Act, RSC 1985, c I‑5, may well be an arguable defence in this case. Whether there has actually been non-compliance is matter for the trial judge to decide. That is exactly one of the issues the judge had to decide by way of trial in All-Fab Building Components Inc. Montreal Lake No. 354, 2015 SKQB 407 (CanLII). [21] In short, I find that the delay has not caused Sollows irreparable harm, and Key has demonstrated an arguable defence to Sollows’ claim. This is an appropriate situation to exercise the judicial discretion provided by Rule 10-13 and set aside Sollows’ default judgment. Key is granted leave to serve and file its Statement of Defence, in the form of the draft filed July 19, 2018. [22] Counsel for Key seeks costs of this application in any event of the cause, on the basis that the default judgment was set aside ex debito justitiae. While costs are often granted in such case, upon considering the entire set of circumstances that led to this application, Sollows should not have costs awarded against it for what was actually result of electoral turmoil within Key’s own governance. [23] The application is granted. Costs shall follow the cause. J. A.R. ROTHERY

HELD: The application was granted. The judgment was set aside and the defendant given leave to file its statement of defence. The court found that the judgment should be set aside as a matter of right because it was in excess of the amount due. The judgment was also set aside on the merits. It found that the time between service of the statement of claim and the default judgment was not sufficiently long to prevent the defendant from defending the action. As well, the defendant had provided an arguable defence to the claim in that it pled in its proposed defence of non-compliance with s. 2(3)(b) of the Indian Act. The delay had not caused the plaintiff irreparable harm.

8_2018skqb217.txt

Editor’s note: Corrigendum released on March 6, 2015. Original judgment has been corrected with text of corrigendum appended. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 386 Date: 2014 12 04 Docket: QB 303 of 2012 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and DAVID JOHN LUNDRIGAN Counsel: Andrew Wyatt for the respondent David Lundrigan self represented, appellant JUDGMENT BARRINGTON-FOOTE J. December 4, 2014 A. INTRODUCTION [1] The appellant, David John Lundrigan, was convicted of having care and control of motor vehicle on April 16, 2005, while his blood alcohol content exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(b) of the Criminal Code, RSC 1985, C-46. He has appealed that conviction pursuant to s. 813 of the Criminal Code. As is more fully explained below, the extraordinary feature of this appeal is that the trial which resulted in Mr. Lundrigan’s conviction which was held March 22, 2012 was the third trial of this charge. For the reasons that follow, have decided to allow Mr. Lundrigan’s appeal, and, rather than ordering fourth trial, to stay the proceedings. B. BACKGROUND: PRIOR PROCEEDINGS [2] This appeal relates to the decision of the trial decision, which is reported at 2012 SKPC 129 (CanLII), 402 Sask 236 [the trial decision]. The trial judge there describes the history of this prosecution, as follows: The facts of the case are unremarkable. It's (sic) tortured progress through the Canadian criminal justice system makes it much more remarkable than the facts. The accused first appeared in court on May 18, 2005, and after numerous failed trial dates, ultimately had his first trial on August 6, 2006. Among other defences, the accused argued at that trial that the roadside demand had not been made forthwith and that the demanding officer should have waited 15 minutes before administering the roadside test. The learned trial judge at the time accepted that argument and acquitted the accused. The Crown appealed that matter to the Court of Queen's Bench; the learned appellate judge granted the Crown appeal and found that in the circumstances of the case, that the demand was made forthwith and that whether or not the accused had consumed beer within fifteen minutes of taking the roadside test was pure speculation. The appeal was granted and new trial ordered. The second trial involved two Provincial Court Judges. Judge Andrychuk heard pretrial motion in regard to the application of the amendments to s. 258(d) of the Criminal Code. Prior to that amendment of the Criminal Code, an accused was able to establish evidence to the contrary by testifying as to consumption just prior to the time of the demand and with the assistance of an expert witness in regard to the absorption of alcohol and if believed by the trier of fact, could put his blood alcohol limit below the proscribed minimum at the time of the driving or care or control. The amendments to s. 258 of the Criminal Code made it much more difficult to establish that defence.: 258(c)(iv) Evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the offence was alleged to have been committed was, if the results of the analysis are the same, the concentration determined by the analysis and if the results are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 millilitres of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 millilitres of blood at the time when the offence was alleged to have been committed. These three things would have to be established by the defendant in addition to his evidence of consumption being accepted as true by the trier of fact. Judge Andrychuk, who heard the application, ruled that the amendments were substantive in effect, therefore not retrospective and that Mr. Lundrigan could in fact lead the standard evidence of his consumption and if believed, his expert would then be able to place the accused's blood alcohol below the prescribed limit at the time of the driving or care or control. Judge Andrychuk retired during that trial and pursuant to sections 669.2(1) and (3) of the Criminal Code, Judge Green was assigned to hear that trial. The matter proceeded to trial before His Honour Judge Green on that basis. Both counsel at that trial submitted that the changes to s. 258 of the Criminal Code regarding evidence to the contrary, effective July 2, 2008, not apply retrospectively to that trial. He found that the accused had rebutted the presumption contained in the section on care or control but that the accused was in actual care or control. He further believed the accused, or at least had reasonable doubt as to his consumption of only one or two beer, despite his relatively high readings and based on his expert's evidence, he dismissed the charge. The Crown again appealed on the basis that Judge Green had found that he could not consider the accused's high readings in regard to the accused's credibility. That appeal was dismissed without written reasons by the learned summary conviction appeal judge and the Crown again appealed. This appeal was heard in the absence of the accused even though he had been served with the Notice of Appeal and Notice of the date of the hearing. Ultimately the Court of Appeal allowed the appeal from the bench, the acquittal was set aside, new trial ordered and that trial was heard before me at Moosomin, Saskatchewan, on March 22, 2012. C. THE TRIAL DECISION [3] The third trial was accordingly held March 22, 2012, resulting in the decision under appeal. There was viva voce evidence at the third trial from the appellant, and from Cpl. Marie Roussel and Cpl. Kelly Guider, the two investigating officers. The evidence also included the following evidence from the first trial: Transcript of evidence, and curriculum vitae, of Leo Walter, Crown expert Transcript of evidence, and curriculum vitae, of Dr. Daniel Sitar, defence expert Transcript of evidence of Cheryl Byrne, defence witness [4] It also included the following transcripts from the second trial: Transcript of evidence of Cpl. Roussel Transcript of evidence of Cpl. Guider Transcript of evidence of the appellant Transcript of the evidence of Jeffrey Allan, defence witness [5] In the trial decision, the trial judge made the following findings relevant to this application, many of which were made by Green P.C.J. at the second trial, and adopted by the trial judge: 1. On April 16, 2005, the appellant was driving from Saskatoon to Winnipeg. He stopped to purchase six pack of beer at Davidson, Saskatchewan, and sometime later, feeling “incredibly tired”, turned south off the #1 Highway to search for quiet back road where he could take nap. 2. While proceeding southbound, the appellant passed two police cars travelling in northerly direction. few minutes later, he turned onto relatively deserted grid road, parked his car in the right lane, leaving enough room for another vehicle to pass in the left lane. There were no signs of life or farmhouses visible. 3. After parking his vehicle, the appellant left the car to relieve himself, taking beer and consuming it while out of the car. He then noticed the police cars returning, and got back in his car, occupying the seat normally occupied by the driver. He observed the police stop at the entrance to the grid road. He pushed the seat back and stretched out. 4. Cpl. Guider then drove up to the appellant’s vehicle. The accused said he was at the vehicle location for approximately ten minutes before the police arrived. As Cpl. Guider approached, he saw the brake lights flash. The appellant had started the vehicle to keep warm, and inadvertently stepped on the brakes as he leaned back in the driver seat. He did not occupy the driver’s seat for the purpose of setting his vehicle in motion, and was planning on resting or sleeping for number of hours. 5. The appellant had applied the emergency brake after he stopped. In order to move his vehicle, he would have to depress the brake pedal, move the gearshift lever and release the emergency brake. 6. Cpl. Roussel followed Cpl. Guider to the scene. She approached the driver’s side of the appellant’s car, and began speaking to him at approximately 8:20 p.m. She noted strong smell of beverage alcohol, and at 8:28 p.m., demanded that the accused provide breath sample by means of an approved screening device [ASD] pursuant to s. 254(2) of the Criminal Code. She had the accused accompany her back to the patrol car, where she administered the test. 7. The appellant failed the ASD, which was calibrated at 100 mg of alcohol to 100 mL of blood. The accused was then taken to the Broadview Detachment of the RCMP. He was administered Intoxilyzer tests at 9:14 p.m. and 9:39 p.m., resulting in readings of 180 and 170 mg of alcohol per millilitre of blood respectively. 8. The appellant gave evidence that the only alcohol he consumed that day was two cans of beer out of the six pack he purchased at Davidson. He also led expert evidence as to his blood alcohol reading. He did so in an attempt to establish so-called “Carter defence”, to overcome the presumption of accuracy in s. 258(1)(c)(iv) of the Criminal Code. However, the trial judge found (at paras. 24-25) that this defence was not available. More specifically, and as noted above, he found that the 2008 amendments to s. 258(1)(c)(iv) applied retrospectively. As such, he found that the appellant was obliged by the amended section to prove three elements to overcome the presumption: that the ASD was malfunctioning or operated improperly, that the malfunction or improper operation resulted in the determination that the appellant’s blood exceeded the approved level, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded that level. As the appellant had failed to provide evidence that could establish these pre-requisites to such defence, the presumption of accuracy applied. 9. In the alternative, the trial judge found that even if he was wrong in concluding that the accused did not provide evidence to the contrary so as to rebut the presumption of accuracy, he had no reasonable doubt as to the guilt of the accused. In doing so, he found that he was entitled to consider the evidence as whole, including the results of the ASD and Intoxilyzer. His conclusions as to reasonable doubt are summarized as follows: 27 In applying the above precepts of law, do not accept the accused's evidence that at most, his consumption of beer were the two beers at the scene. This evidence has no air of credibility. He had driven for several hours, had stopped at the Davidson Bar for something to eat and inexplicably picked up six pack of beer to travel with. He then testified that he was so incredibly tired that he felt he was danger on the road and had to pull off to have sleep. The first thing he does once he pulls off and finds quiet spot in the middle of nowhere is to find can or two of beer and start drinking. This makes no sense to me and reject it as being what really happened. The readings achieved on both the roadside instrument and the subsequent Intoxilyzer readings simply could have not been obtained by the consumption of one or two beer while stopped at the roadside in the manner the accused described. Furthermore the evidence of the Crown expert at the trial before Judge Green established that in his opinion both the roadside instrument and the Intoxilyzer instruments were functioning properly on the date in question and that the only real variable was the self reporting drinking of accused, which he generally finds to be notoriously unreliable. 28 Therefore on the whole of the evidence, including the Intoxilyzer results and the results of the roadside testing, am not left with any reasonable doubt as to the guilt of the accused. 29 In my opinion, he is simply mistaken as to the amount of alcohol he consumed that day, or is deliberately misleading the Court in an attempt to defeat this charge. For these reasons do not accept his evidence as to his consumption and do not find it to be capable of evidence to the contrary. 10. As to care and control, the trial judge agreed (at para. 20) with the reasoning of Green P.C.J., who found that the appellant had rebutted the presumption in s. 258(1)(a) of the Criminal Code that he was in care and control as result of occupying the driver’s seat at the time of the traffic stop. In adopting Green P.C.J.’s reasons, the trial judge adopted the following definition of de facto care and control from Mallery, 2008 NBCA 18 (CanLII), 231 CCC (3d) 203 [Mallery] at para 52: In care or control cases, the ultimate task of the trial judge is to decide whether the Crown has met the burden of establishing beyond reasonable doubt that the accused's interaction with his or her vehicle presented danger or, as it is sometimes phrased, "risk of danger" or "risk to public safety". If the facts establish beyond reasonable doubt risk of the accused putting the vehicle in motion, either intentionally or unintentionally, or if the facts otherwise support finding of danger (such as from parking one's car in the middle of public thoroughfare), then care or control will have been established. [6] The trial judge then cited the following conclusions from para. 14 of Green P.C.J.’s reasons, and summarized his own conclusions from the trial decision as to care and control as follows at para. 19-20: 19 Judge Green addressed this issue in his judgment and found as follows: [14] However, have reached different conclusion about whether the Crown proved risk that Mr. Lundrigan could put his vehicle into motion, intentionally or unintentionally. In R. v. Brahniuk, [2002] S.J. No. 533, the Saskatchewan Court of Appeal found Mr. Brahniuk to be in care or control of his vehicle after starting the engine and locking the doors. While each case depends on its unique circumstances, here, accept that Mr. Lundrigan started his vehicle, adjusted his heater and inadvertently stepped on the brake as he leaned back in the driver's seat. Given his own testimony, depression of the brake would allow his vehicle to be put into gear. Taken together, am satisfied that, at the point the officer found Mr. Lundrigan, there was risk of him putting his vehicle into motion. As result, am satisfied he was in care or control of his vehicle at that point. 20 Once again, find myself in agreement with this reasoning and suffice it to say would have reached the same conclusion as reached by Judge Green and therefore, in my opinion, while the accused has rebutted the presumption, just barely in my opinion, he was definitely in actual care or control. The only thing the accused added to his viva voce evidence before me was the addition of the emergency brake, which would have to be released prior to the vehicle moving. This in my opinion, does not alter the fact that his vehicle was capable of almost immediate movement and as such, created the risk the section is designed to prevent. will leave aside for the moment the obvious question of what condition the accused was in when he drove the vehicle to the spot where it was subsequently discovered by the police and whether that, in and of itself, would constitute care or control. In my opinion, it would, but for the purposes of this case it is sufficient that conclude he was in actual care or control at the time the police officers arrived on the scene. [emphasis added] [7] It was accordingly his opinion that the appellant had care and control not only when he was approached by the police officers, but when he drove the vehicle to the location of the police stop. [8] Finally, the trial judge found that the appellant did not establish an abuse of process as result of the fact there were three trials. The accused did not allege any improper behavior or misconduct by the Crown. However, in the opinion of the trial judge, such evidence was not required. As he notes in the trial decision: 34 To define "oppressive" as requiring misconduct or an improper motive would, in my view, unduly restrict the operation of the doctrine. In this case, for example, where there is no suggestion of misconduct, such definition would prevent any limit being placed on the number of trials that could take place. Prosecutorial misconduct and improper motivation are but two of many factors to be taken into account when Court is called upon to consider whether or not in particular case the Crown's exercise of its discretion to re-lay the indictment amounts to an abuse of process. [9] Relying on Keyowski, 1988 CanLII 74 (SCC), [1988] SCR 657 [Keyowski], he then concludes as follows in para. 35-38 of the trial decision: 35 can only echo what both the Saskatchewan Court of Appeal and the Supreme Court of Canada have stated. While third trial in Mr. Lundrigan's case may stretch the limits of the community's sense of fair play, it does not exceed them. Impaired drivers continue to occupy the public mind in terms of road safety and the unnecessary death and injury that continues to result from individuals who continue to drink and drive despite the draconian increase in financial penalties and loss of driving privileges. This accused has not suffered negative publicity and the proceedings while lengthy have been as result of properly brought and prosecuted appeals which do take time to wend their way through the legal system. 36 In my opinion, the Defendant has not established the relevant factors on balance of probabilities. In fact he concedes at page of his argument at subparagraph that there is no alleged misconduct on the part of the Crown. 37 This issue would have been appreciated by the Court of Appeal which nevertheless ordered new trial, despite the fact that the abuse of process argument was not argued before them. 38 It is my respectful view that the accused has not established an abuse of process and that this is not one of those clearest of cases where the court should direct judicial stay. [10] The appellant was self-represented on this appeal, and raised many grounds of appeal. Those grounds were not fully identified in his notice of appeal, but were fleshed out in his factum and oral submissions. Further, some of the issues were characterized in fashion which reflected the fact that the appellant while remarkably well versed in the law is not lawyer. am, however, satisfied that the Crown understood that the following grounds of appeal all of which are dealt with in this judgment were at issue, and that it was able to respond to those grounds: 1. Did the trial judge err in finding that the appellant had de facto care and control of the vehicle? 2. Did the trial judge err by failing to consider evidence of operator error in the administration of the Intoxilyzer 5000c? 3. Did the trial judge err in finding that the evidence did not constitute evidence to the contrary so as to rebut the statutory presumptions in s. 258(1)(c)(iv) of the Criminal Code, or raise reasonable doubt as to the appellant’s guilt? 4. Did the trial judge err in finding that the 2008 amendments to s. 258(1)(c)(iv) of the Criminal Code were retrospective, and as such, applied to this charge? If so, did that error compromise trial fairness or result in denial of the appellant’s right of answer and defence? 5. Did the trial judge err in law by failing to address or provide reasons in relation to the appellant’s submission that the police stop which resulted in this charge constituted an arbitrary detention contrary to s. of the Charter of Rights and Freedoms [Charter]? 6. Should the prosecution be stayed based on the basis that fourth trial would constitute an abuse of process? [11] At the hearing, the Crown conceded that the learned trial judge erred in finding that the 2008 amendments to s. 258(1)(c)(iv), which established three prerequisites to be met by an accused attempting to establish “evidence to the contrary” so as to rebut the statutory presumption of accuracy, were retrospective. Although the learned trial judge was correct as to the state of the law in Saskatchewan at the time he reached that conclusion, the Supreme Court of Canada reached the opposite conclusion in its later decision in Dineley, 2012 SCC 58 (CanLII), [2012] SCR 272. However, that concession did not fully dispose of the fourth ground of appeal. The appellant asserts for reasons that are more fully explained below that this error compromised his right to full and fair trial in fashion that could only be cured by fourth trial. He also submits that fourth trial would constitute an abuse of process, and that stay of proceedings should accordingly issue. E. CRIMINAL CODE PROVISIONS [12] The incident which resulted in this charge occurred April 16, 2005. As such, the relevant Criminal Code provisions are as follows: 253. (1) Every one commits an offence who operates motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, ... (b) having consumed alcohol in such quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. (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. (3) If peace officer has reasonable grounds to believe that person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (a) to provide, as soon as practicable, (i) samples of breath that, in qualified technician’s opinion, will enable proper analysis to be made to determine the concentration, if any, of alcohol in the person’s blood,... (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2), (a) where it is proved that the accused occupied the seat or position ordinarily occupied by person who operates motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be; ... (c) where samples of the breath of the accused have been taken pursuant to demand made under subsection 254(3), if ... (ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken, (iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by qualified technician, and (iv) an analysis of each sample was made by means of an approved instrument operated by qualified technician, evidence of the results of the analyses so made is, in the absence of evidence to the contrary, proof that the concentration of alcohol in the blood of the accused at the time when the offence was alleged to have been committed was, where the results of the analyses are the same, the concentration determined by the analyses and, where the results of the analyses are different, the lowest of the concentrations determined by the analyses F. ANALYSIS 1. Did the trial judge err in finding that the appellant had de facto care and control of the vehicle? [13] The trial judge found that the accused rebutted the presumption in s. 258(1)(a) of the Criminal Code that the person who occupies the driver’s seat is deemed to have care and control of vehicle. More specifically, he adopted (at para. 20) Green P.C.J.’s reasoning, which included finding that the appellant was planning on resting and sleeping for number of hours before driving to Manitoba, and did not occupy the driver’s seat for the purpose of setting his vehicle in motion. The Crown does not take issue with these findings of fact. [14] Given that the presumption of care and control was rebutted, the trial judge next considered whether the accused had de facto care and control, and found that he did. The appellant takes issue with that conclusion, emphasizing two key themes in his factum. First, the appellant correctly notes that the test to be applied in determining whether the accused has de facto care and control of vehicle is that established by Boudreault, 2012 SCC 56 (CanLII), [2012] SCR 157 [Boudreault], and submits that the trial judge did not apply that test. In Poncelet, 2014 SKCA 30 (CanLII), 433 Sask 237 [Poncelet] Richards C.J.S. commented as follows in relation to Boudreault: 21 The leading authority with respect to the offence of being in care or control of vehicle contrary to s. 253(1) of the Criminal Code is now R. v. Boudreault, supra. ... 22 In its decision, the Supreme Court described the essential elements of "care or control" as follows: (a) an intentional course of conduct associated with motor vehicle; (b) by person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; and (c) in circumstances that create realistic risk of danger to persons or property (para. 33). 23 The Court underlined that the risk of danger must be "realistic" and not just "theoretically possible". It said the risk need not be "probable" or "substantial" and, speaking through Fish J., described the low nature of the risk threshold as follows: [48] need hardly reiterate that "realistic risk" is low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. 24 As to the practical effect of its view of "care or control", the Supreme Court stressed that intoxicated persons found behind the wheel of vehicle will almost always face conviction: [45] As mentioned at the outset, anyone found inebriated and behind the wheel with present ability to drive will and should almost invariably be convicted. It hardly follows, however, that conviction in these circumstances is, or should be, "automatic". conviction will be neither appropriate nor inevitable absent realistic risk of danger in the particular circumstances of the case. 25 should also note that, in the course of its reasons, the Court said the existence of realistic danger is question of fact. [15] Second, the appellant submits that the evidence discloses no more than negligible risk that he would set his vehicle in motion, and that there was accordingly no realistic risk of danger. He notes in this context that he showed no signs of impairment, and thus no realistic risk of an impaired thought process that might lead him to drive. He notes his unwavering testimony that he would not have changed his mind and continued driving. He also notes that he found secure and remote location to park and was actively engaged in “risk mitigation”. He notes that in order to put the vehicle in motion, he would have had to start the car, depress the brake, put the vehicle in gear and release the emergency brake. He also submits that the trial judge erred in adopting Green P.C.J.’s finding that Cpl. Guider saw the brake lights flash as he pulled up to the appellant’s vehicle. The trial judge’s reasons confirm that he took this finding of fact into account in reaching what was, for him, the key conclusion (at para. 20 of the trial decision) “that his vehicle was capable of almost immediate movement”. [16] In my respectful opinion, the learned trial judge’s reasons disclose that he applied the wrong legal test as to de facto care and control. The fact that he did not apply Boudreault and Poncelet is, as in relation to the retrospective amendments issue, entirely understandable. Both of those decisions were issued after the trial judge decided this case. He accordingly applied the legal test outlined in Mallery, which did not call for proof of “realistic risk of danger”, but rather, simple risk of danger or risk of the accused putting his vehicle in motion. He concluded that there was such risk because the appellant’s vehicle was capable of almost immediate movement. [17] It is my view the learned trial judge’s reasons, read as whole, do not disclose that he considered whether the risk was “realistic”. As Fish J. notes in Boudreault, where, as here, the accused does not intend to drive, there are at least three ways in which realistic risk of danger may arise. First, person who is impaired may change his or her mind and proceed to drive despite the lack of current intention to do so. Second, the accused may unintentionally set the vehicle in motion. Third, stationary or inoperable vehicle may endanger persons or property. [18] The trial judge’s reasons do not disclose that he concluded there was realistic risk of danger on any of these accounts, or on any other basis that might suggest realistic risk of danger. There was no evidence of impairment other than the smell of alcohol, and the trial judge accepted the appellant’s evidence that he did not intend to drive. Further, he did not find that there was realistic risk that the appellant could inadvertently depress the brake, put the vehicle in gear and release the emergency break. Rather, he found that the vehicle was capable of immediate movement, and “as such, created the risk the section was designed to present”. The issue is not whether vehicle is capable of movement, but whether there is realistic risk it will be moved. [19] Although Boudreault finds that the determination of whether there is realistic risk of danger is question of fact, the application of the wrong legal test is an error of law. The question, accordingly, is whether the appeal should be granted, or whether it should be denied on the basis of s. 686(1)(b)(iii) of the Criminal Code, which provides that an appeal on question of law may be dismissed if no substantial wrong or miscarriage of justice has occurred. [20] In this case, that engages two issues. First, was there reasonable possibility that the trial judge would have found that the appellant did not have care and control while stopped on the grid road if the error had not occurred? That is the test specified by Bevan, 1993 CanLII 101 (SCC), [1993] SCR 599 in relation to whether there has been miscarriage of justice. The appellant adduced evidence which was accepted by the trial judge that he did not intend to drive his vehicle for number of hours. The appellant parked his vehicle in remote location consistent with such plan. There is no evidence he showed signs of impairment. On the basis of that evidence, it is reasonably possible that the trial judge may have concluded that there was no realistic risk that the appellant would drive while his blood alcohol content exceeded the legal limit. am accordingly unable to find that there was no substantial miscarriage of justice on this basis. 2. Did the trial judge err by failing to consider evidence of operator error in the administration of the Intoxilyzer 5000c? [21] There is, however, second issue, the answer to which disposes of this ground of appeal. As the Crown notes, the appellant had care and control of the vehicle until he parked on the grid road. Further, given that he did so less than two hours before the administration of the Intoxilyzer test, the Crown was entitled to rely on the presumptions in s. 258(1)(c) of the Criminal Code to prove that the appellant’s blood alcohol level was the same at the time of the offence as that disclosed by the breath tests. It was, accordingly, not necessary for the Crown to prove that the appellant had care and control when he was parked in order to prove the offence. As such, the fact that the learned trial judge committed an error of law in relation to the test to be applied in determining whether the appellant had care and control after the appellant stopped did not result in a substantial wrong or miscarriage of justice. [22] The appellant submitted that the Crown is not entitled to prove the offence in this fashion, as this argument was not raised at trial. With respect, do not agree. Following the close of the appellant's case at trial, the Crown notes (transcript, p. 220) that the decision in Shuparski, 2003 SKCA 22 (CanLII), 232 Sask is "extremely important" in relation to the issue of care and control in this case. He then refers to the "critical overlap" period. The Crown thereby signaled that it could prove the offence by proving that the accused drove his vehicle not less than two hours before the administration of the first Intoxilyzer test. Further, this line of reasoning was not only referred to in the trial judge's reasons (at para. 20), but was fully disclosed at pps. 29-30 of the Crown's factum on this appeal. [23] In the result, the appellant cannot claim that this argument was raised for the first time on appeal, or that he was surprised or prejudiced in his ability to respond. There is no suggestion, and no basis to conclude, that the appellant failed to lead relevant evidence as he did not know this issue would be argued. Rather, it is quite clear, based on the evidence as whole including the appellant's admissions as to when he drove to the grid road that the appellant had care and control, not more than approximately ten minutes before he was first approached by the police. The appeal on this ground is accordingly dismissed. [24] Given that there was no evidence of the failure to observe the appellant while the tests were administered, or as to the significance of the failure to do so, the trial judge cannot be criticized for failing to refer to that issue. The appeal on this ground is accordingly dismissed. 3. Did the trial judge err in finding that the evidence did not constitute evidence to the contrary so as to rebut the statutory presumption in s. 258(1)(c) of the Criminal Code, or raise reasonable doubt as to the appellant's guilt? [25] As is noted above, the trial judge erroneously found based on the case law as it then was that the 2008 amendments to s. 258(1)(c)(iv) were retrospective. He then found that the appellant did not present evidence that could establish the three conditions set by those amendments. If that was so, the presumption of accuracy in s. 258(1)(c)(iv) would apply, and there was no need for the trial judge to determine whether, based on all the evidence, there was reasonable doubt as to whether the appellant’s blood alcohol level exceeded the legal limit at the time of the offence. However, he nonetheless determined that issue in the alternative, and found that he had no reasonable doubt. In effect, the trial judge also addressed the issue of evidence to the contrary as if the 2008 amendments did not apply, and as if the appellant had presented evidence to the contrary sufficient to rebut the presumption. Accordingly, the appellant was not prejudiced by the trial judge’s error of law. [26] The issue on this ground of appeal, accordingly, is whether the trial judge erred in concluding that the evidence did not raise reasonable doubt as to the guilt of the accused. The appellant submits that the trial judge erred by misapprehending the evidence, thereby committing an error of law. More specifically, he points to several aspects of the evidence that he says the trial judge did not consider. First, he notes the evidence of operator error. This issue is heavily emphasized in his factum. Second, he notes the evidence that while he smelled of alcohol, he showed no signs of impairment. Third, he notes the evidence of Ms. Byrne and Mr. Allan that he is social drinker, which is relevant to the question of whether he would have shown signs of impairment if he had the blood alcohol readings disclosed by the Intoxylizer. Finally, he says the trial judge did not consider the expert evidence, which gives meaning to the evidence relating to consumption and signs of impairment. [27] In support of his submission that the failure to consider this evidence constituted an error of law, the appellant cited Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 CCC (3d) 193 (Ont CA) [Morrissey], Lohrer, 2004 SCC 80 (CanLII), [2004] SCR 732 [Lohrer], and Harper, 1982 CanLII 11 (SCC), [1982] SCR [Harper], which are leading cases on this issue. In Harper, Estey J. commented as follows: An appellate tribunal has neither the duty nor the right to reassess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the reasons for judgment, discloses lack of appreciation of relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede. [28] In Morrissey, the Ontario Court of Appeal confirmed (at para. 83) that misapprehension of the evidence may include failure to consider evidence relevant to material issue, mistake as to the substance of the evidence, or failure to give proper effect to evidence. In Lohrer, Binnie J. noted (at para. 1) that misapprehension arises if the trial judge is “mistaken as to the substance of material parts of the evidence”. Estey J. also cites Morrissey with approval, noting that there are three hurdles to be cleared to demonstrate misapprehension of evidence: Morrissey, it should be emphasized, describes stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge. Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but "in the reasoning process resulting in conviction". This formulation of the question has been frequently applied. [29] It is fair to say that the learned trial judge’s reasons as to why he decided he had no reasonable doubt, which are at paras. 26-29 of his judgment, are somewhat sparse. Further, failure by the trial judge to deal with or analyze material evidence in his or her reasons can result in the conclusion that he or she has misapprehended the evidence: see, for example, Clouthier, 2012 ONCA 636 (CanLII), at paras 12-16, and Schmidt, 2013 ONSC 6533 (CanLII), where the court set aside convictions as result of the trial’s judge’s failure to analyze important exculpatory evidence. [30] That said, it is my view that the trial judge’s reasons do not disclose an error within the meaning of the third part of the test outlined in Morrissey. That is, they do not disclose that the trial judge failed to consider relevant evidence relating to a material issue which played an essential part in the reasoning process which resulted in the conviction. The key conflict in the evidence in this case was relatively simple. The trial judge had to reconcile the appellant’s evidence of consumption, and the expert evidence as to the effect of that consumption, on the one hand, and the test results on the other. Given that the ASD and Intoxylizer were operating properly, that evidence could be reconciled only by deciding that there was reasonable doubt as result of operator error, or by concluding that the accused was mistaken or intentionally misled the court as to his consumption. It was for the trial judge to make that decision, based on his assessment of all of the evidence. [31] It is apparent that the trial judge fully appreciated this issue, and that his conclusion that the appellant lacked credibility was the key to his decision. He found (at para. 28) that the appellant’s evidence that he decided to buy six pack of beer at Davidson, and drank two beer immediately after pulling over to sleep and despite being “incredibly tired” lacked an air of credibility, and that it made no sense to him. He took particular account of the test results from the ASD and Intoxylizer in assessing the appellant’s evidence that he drank only two beers, as he was entitled to do: see Fox, 2003 SKCA 79 (CanLII), [2004] WWR 477, at paras 55-58, and 66, and Lundrigan at paras 7-9. Having done so, he concludes as follows: 28 Therefore on the whole of the evidence, including the Intoxilyzer results and the results of the roadside testing, am not left with any reasonable doubt as to the guilt of the accused. [32] This reasoning must also read in the context of the evidence and the reasons as whole. The reasons confirm that the trial judge was aware that there was no evidence of impairment. have no reason to conclude that he did not consider that evidence, merely because he did not specifically refer to it in paras. 27-29 of his reasons. His statement that the Intoxylizer readings could not be explained by the consumption of one or two beers confirms that he was aware of the expert evidence. Further, he specifically refers (at para. 27 of his judgment) to the evidence of the Crown expert, which included evidence as to signs of impairment at certain blood alcohol levels, the effect of drinking habits, and the expert’s opinion that the only real variable was the amount of alcohol consumed. Although the trial judge did not refer specifically to the evidence from Ms. Byrne or Mr. Allan, conclude, based on his awareness of the expert evidence and his reasons as whole, that the failure to do so does not mean he did not consider that evidence. Further, and even if there was such an omission, it did play an essential part in his reasoning. Finally, although the appellant correctly notes that he did not refer to evidence of operator error relating to the Intoxylizer, that omission was appropriate, due to the lack of evidence that there had been such an error, or of its potential effect on test results. [33] In the result, am not satisfied that the trial judge misapprehended the evidence by failing to consider relevant evidence relating to material issue, and that there was an error of this kind which played an essential part in the reasoning process which resulted in the conviction. To the contrary, am satisfied, based on his reasons, that he considered the evidence as whole. [34] would finally note that the appellant’s factum also contains the following submission: It is respectfully submitted that there was more than enough evidence to raise reasonable doubt in the Appellant’s case. The absolute absence of any signs of impairment, the testimony of the Appellant and of the experts, the evidence of the two witnesses for the Appellant and the improper operation of the Intoxilyzer 5000C should have raised reasonable doubt. [35] Although it is my understanding, based on the appellant’s factum, that the issue on this ground of appeal was the misapprehension of evidence resulting in an error of law described above, this statement, together with some of the appellant’s submissions at the hearing of this appeal, suggest that the appellant also intended to appeal based on an error of fact. If that is so, the question would be whether the trial judge’s rejection of the appellant’s evidence that he only had two beers, and his conclusion that the appellant’s blood alcohol content was in excess of the legal limit, should be set aside on the ground specified by s. 686(1)(a)(i) of the Criminal Code. That section provides as follows: 686. (1) On the hearing of an appeal against conviction...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,... [36] The standard of review applicable to an appeal under s. 686(1)(a) is well established. It was summarized by Popescul J. (as he then was) in Helm, 2011 SKQB 32 (CanLII), 368 Sask 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. [37] As was noted by Ball J. in Kratchmer, 2012 SKQB 117 (CanLII), 392 Sask 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)) [38] Applying this standard to the facts in this case, it is clear for essentially the same reasons as those provided in relation to the alleged misapprehension of evidence that the evidence was reasonably capable of supporting the learned trial judge’s conclusion that the appellant’s evidence as to the amount he consumed was untrue. It was open to the trial judge to find that the appellant’s story did not make sense, and lacked an air of credibility. It was open to him particularly given the evidence the ASD and Intoxylizer were functioning properly and the lack of evidence of improper operation to reconcile the conflict in the evidence by accepting what can properly be characterized as the most obvious explanation for that conflict: that is, that the appellant’s evidence of consumption was not true. There was evidence that was reasonably capable of supporting all of these conclusions. There were other explanations available for the lack of signs of impairment referred to in the expert evidence, including an unusual tolerance to alcohol, and long practice at covering up those signs. [39] In the result, am unable to find, based on the evidence as whole that was before him, that the trial judge made palpable and overriding error in finding that he had no reasonable doubt. 4. Did the trial judge err in finding that the 2008 amendments to s. 258(1)(c)(iv) of the Criminal Code were retrospective, and as such, applied to this charge? If so, did that error compromise trial fairness or result in denial of the appellant’s right of answer and defence? [40] would first note that, as is noted above, it is common ground between the appellant and the Crown that the learned trial judge erred in his ruling that the 2008 amendments to s. 258(1)(c)(iv) which established three prerequisites relating to evidence to the contrary were retrospective. The appellant submits that the trial judge’s erroneous ruling on this point compromised his defence in two ways. First, the appellant says that the trial judge, having found that the amendments were effective and that the presumption that the test results were accurate was accordingly essentially insurmountable, was not receptive to the argument that the ASD and Intoxilyzer results were incorrect. In his view, the trial judge’s ability to deal fairly with the appellant’s credibility as to how much he drank was compromised, and he accordingly gave no weight to the expert evidence relating to the effect of drinking two beers. [41] With respect, this argument has no merit. As is noted above, the learned trial judge decided, based on all the evidence, that he had no reasonable doubt as to the appellant’s guilt. In doing so, he considered the ASD and Intoxilyzer results. He was entitled to do so. There is no basis to conclude that he erroneously gave those results undue weight based on his erroneous belief that Parliament had, by amending s. 258, placed very high burden on an accused seeking to attack the presumption of accuracy. As the Crown correctly notes, judges are commonly called upon to make decisions in the alternative. [42] Second, the appellant submits that he was denied the right to make full answer and defence, as the trial judge did not permit him to lead expert evidence relating to the proper operation of the Intoxilyzer. He says that the only way that he will get fair trial is if he has the opportunity to present his case at fourth trial. He then submits that fourth trial would constitute an abuse of process, and that the prosecution should accordingly be stayed. [43] The issue of retrospective application of the 2008 amendments, and their effect on what evidence the appellant should lead, was canvassed in discussion between the trial judge, the appellant and the Crown at the third trial. That discussion, which occurred before the evidence had been led, was initiated by the Crown, as follows: (transcript p. 5, lines to 12) Mr. Wyatt: In addition, the one issue think we need to decide at the beginning of the trial Mr. Wyatt: is the retrospectivity and what the evidence to the contrary issue. (sic) Mr. Wyatt: It makes no sense to wait to the end to do that because the evidence then becomes important, or more important or, sorry, different evidence becomes important. [44] The trial judge then advised the appellant, on the basis of submissions by the Crown, (transcript p.5, line 18 to p.10, line 21) that, as result of decisions of this Court, and he was bound to find that the 2008 amendments to s. 258(1)(c)(iv) applied in this case. As the court then puts it: (transcript p. 9, line 20 to p. 10, line 4) The Court: The amendments of subsection (1) have not eliminated but rather changed the nature of the available defence. It is still open for the accused to call evidence that the pattern of consumption of alcohol was such that breath readings should have been under the legal limit at the time of driving. The effect of the amendment is that an accused must also point to an instrument or operator error that would have resulted in the breath readings, claimed to be erroneous.... [45] The appellant responded as follows: (transcript p. 10, line 22 to p. 12, line 26) Mr. Lundrigan: think that understand where we’re going and I’m I’m -it doesn’t surprise me, wasn’t expecting anything different. just think that now, given the fact that the the the rules have changed and, if you will, the the burden seems to be more on my on my side to establish there was some fallibility in the in the equipment. The Court: That’s correct. Mr. Lundrigan: That leads me to the next query have given the fact that now have to prove the equipment was, at the time, unreliable and that there was in fact, some kind of mechanical error, would have to be position now to call an expert on those devices and while don’t want to hold the court up with with with this, think that would like to reserve the my right to possibly have an expert testify to that in the future, if required. The Court: just don’t know how you’d ever come up with that evidence Mr. Lundrigan. This has been dragging on for too long. This is case from 2005. Mr. Lundrigan: The Court: This is seven year old case so, don’t think I’m going to be, you know, too inclined to grant any further adjournments from either side Mr. Lundrigan: had to ask. You know. So think we should proceed today with the evidence. We should get as far as we can. Mr. Lundrigan: The Court: You can then call the expert. You or actually you’ll be filing the expert’s testimony that you do have. would probably grant you some time to reflect on that but after hear all the evidence, but quite frankly, if can be very candid with you, I’m not sure how any accused gets around that Section 258 requirement. Mr. Lundrigan: Fair enough. The Court: It’s almost impossible. The courts seem to have said that you’d have to almost call in technician on the stand who would say and oh, by the way, that instrument wasn’t working worth hoot that day. What technician is ever going to say that on stand. don’t don’t know how you ever would prove that. You’d have to have some frankly, don’t know how an accused is ever going to surmount that and think that’s why it’s, think, before the Supreme Court on that that issue. As to it has it’s made the hurdle too high, you know. So let’s let’s proceed today on the basis of calling calling and filing the transcript of the evidence of the two witnesses that the Crown did call.... [46] Shortly thereafter, there is discussion of the evidence of Mr. Allan and Ms. Byrne which was led by the appellant in the first trial. The Crown notes (transcript p. 25, line to 11) that much of that evidence deals with the “two drink” defence, which was not available if the 2008 amendments were retrospective. The following discussion then ensued: (transcript p. 25, line 20 to p.27, line 8) Mr. Lundrigan: Is that not defence that’s available to me still even though the the threshold is higher. The Court: Well again, you have to prove those three things so what I’m hearing from Mr. Wyatt is that think don’t know how you’re going to establish that the Breathalyser instrument was functioning improperly on the date in question, given its happened seven years ago. Mr. Lundrigan: Well think at the end of the day, but Your Honour, here’s ultimately I’ll I’ll just cut to the chase. I’m an engineer by by by profession and and so look at things kind of in that fashion. lot of that stuff thought, quite frankly, would still fly. I’m getting the the impression it’s not. The Court: Well, I’m stuck I’m stuck Mr. Lundrigan: Now having said that might might The Court: I’m stuck with the Ontario Court of Appeal and the Supreme Court. Like there’s things that just, you know you’re you’re talking to an entry-level judge here. Okay. Like we’re this is Provincial Court, we’re the low we’re the lowest part of the pile and we have to and I’m not bound by the Ontario Court of Appeal but am bound by the Saskatchewan Court of Queen’s Bench that’s ruled on that issue so Mr. Lundrigan: The Court: in regard to the Section 258 issue, it’s much bigger hurdle for any accused now, not just you, any accused that the two beer defence has pretty much gone by the way of the dinosaur. Pretty much out of the question. Unless the Supreme Court, for whatever reason, rules that Section 258 is unconstitutional. But that that haven’t heard they’ve done that yet so as it is as it stands, right now, at this moment, Sections 258 requires you to establish those three pre-conditions in order for successful defence to be offered in regard to the so-called Carter defence or the two beer defence. [47] The appellant submitted that this exchange means that he was denied the right to present expert evidence. As the Crown notes, that is not so. The trial judge ultimately did not have to deal with that question, as the accused did not press the issue. However, it is no surprise that the accused did not pursue the issue. This unrepresented accused was given a very strong message by the learned trial judge that there was no point in leading evidence in an attempt to challenge the accuracy of the Intoxylizer results. Further, and although the learned trial judge initially referred to the fact that the appellant could prove either equipment malfunction or operator error, his comments, taken as a whole, strongly suggest that the only expert evidence that would have been relevant would be evidence relating to equipment malfunction. With respect, that was incorrect. Evidence relating to operator error, and as to the proper operation of the Intoxilyzer, would also have been relevant. That is so regardless of whether the amendments to s. 258(1)(c)(iv) were in force. [48] Although the appellant has not appealed on the ground that the learned trial judge failed to comply with his duty to assist self-represented accused, it is useful to consider that duty in this context. In Harris, 2009 SKCA 96 (CanLII), 331 Sask 283, Richards J.A. (as he then was) summarized the law as follows: 28 ...a trial judge has an obligation to ensure the trial is fair and there is no miscarriage of justice. The right to fair trial is fundamental and is not diminished by person's decision to act on his or her own behalf. This principle, of course, engages potentially challenging responsibility for trial judges as it involves making difficult choices about how far the court can properly allow itself to be drawn into the trial process. Nonetheless, judge in this kind of situation must preserve the integrity of the proceedings. 29 In my opinion, the question of whether self-represented accused received sufficient assistance from trial judge cannot be properly answered by developing and relying on rigid list of steps that judge must undertake when dealing with such accused. Rather, the obligation of judge must be determined with reference to the dynamics of the trial in question, the circumstances of the particular accused and the nature of the charges. The specific initiatives necessary to ensure fair trial will vary from case to case. Fruman J.A. made this point as follows in R. v. Phillips, 2003 ABCA (CanLII), 172 C.C.C. (3d) 285: [22] Perhaps some judges are beguiled by the consistency and simplicity of boiler-plate language. But trials involving unrepresented accuseds are rarely consistent or simple. Their need for guidance varies depending on the crime, the facts, the defences raised and the accused's sophistication. The judge's advice must be interactive, tailored to the circumstances of the offence and the offender, with appropriate instruction at each stage of trial. [23] How far trial judge should go in assisting an accused is therefore matter of judicial discretion: McGibbon,[(1988), 1988 CanLII 149 (ON CA), 45 C.C.C. (3d) 334] at 347. The overriding duty is to ensure that the unrepresented accused has fair trial. Consistent with that duty, the judge "is required within reason to provide assistance to the unrepresented accused, to aid him in the proper conduct of his defence, and to guide him throughout the trial in such way that his defence is brought out with its full force and effect". [49] In my respectful opinion, the learned trial judge’s comments fell short of meeting this standard. In the result, we are left in the curious position that the learned trial judge with the best of intentions, and as result of his understandable but incorrect conclusion as to the application of the amendments to s. 258 made comments calculated to influence the accused to conduct his defence in fashion that may have prejudiced the accused. [50] The appellant says that he would have led expert evidence as to operator error, and that his right to full answer and defence was compromised because the trial judge did not permit him to do so. As noted, that overstates the case. Indeed, the appellant did not expressly ask to lead evidence relating to operator error at trial, or otherwise advert to that issue. However, his failure to press the issue is entirely understandable, given that he was advised by the trial judge that the only evidence that could work was evidence of equipment malfunction. He was also told that the trial judge might refuse an adjournment, but that “the two beer defence has pretty much gone by the way of the dinosaur” and is “pretty much out of the question”. [51] In these circumstances, it would be inappropriate to hold the appellant responsible for the failure to press the issue of operator error, or to refuse relief because he did not do so. He was entitled to rely on the learned trial judge. If he had been corrected when he said he had to prove an equipment malfunction, and told that evidence of operator error could also be relevant, he may well have led such evidence. That evidence, which would have related to the alleged failure to observe the appellant to ensure that there was no mouth alcohol present, together with the evidence that mouth alcohol may have been present when the ASD was administered, would have been relevant to the question of the reliability of the test results. The test results were central to the trial judge’s decision as to reasonable doubt. [52] In the result, it is my respectful opinion that the trial judge’s comments compromised trial fairness, thereby resulting in an error of law within the meaning of s. 686(1)(a)(ii) of the Criminal Code. The appeal is accordingly granted on this ground. 5. Did the trial judge err in law by failing to address or provide reasons in relation to the appellant’s submission that the police stop which resulted in this charge constituted an arbitrary detention contrary to s. of the Charter? [53] The appellant says that he took the position at trial that the police had no lawful purpose for stopping his vehicle on the grid road. On that basis, he argued that his right not to be arbitrarily detained pursuant to s. of the Charter was violated. In response, the Crown says that this issue was not properly raised at trial, as it was first raised by the appellant only in his written argument submitted after the trial. It notes that the trial judge summarized the issues both before and after evidence was led, and that this issue was not identified. The Crown also says that it did not fully canvass the evidence relevant to this issue, as it was not aware it had to do so. For these reasons, it submits that this argument should not be considered on this appeal. [54] The Crown’s position is understandable. An accused who seeks an order that evidence be excluded pursuant to s. 24 of the Charter is generally obliged to give reasonable notice of that application. Further, an objection to the admissibility of evidence should be made before or when the evidence is proffered. However, trial judge has the discretion to permit an accused to challenge the admissibility of evidence which has already been received, where the interests of justice so warrant: see Kutynec (1992), 1992 CanLII 7751 (ON CA), 70 CCC (3d) 289 (Ont CA) at para 21. That discretion is particularly significant in the case of self-represented accused: see Howell (1995), 1995 CanLII 4282 (NS CA), 103 CCC (3d) 302 (NS CA). [55] As is noted in Pelletier (1995), 1995 CanLII 3923 (SK CA), 97 CCC (3d) 139 (Sask CA), at para 13, our Court of Appeal has generally refused to hear Charter issues raised for the first time on appeal, if the necessary factual underpinning does not exist. This principle is illustrated by Kay, 2006 SKQB 79 (CanLII), 277 Sask 72, where the court refused to permit Charter application first raised on appeal. It would apply equally on an appeal to this court. [56] However, this is not a case where the alleged Charter breach was first raised on appeal. The issue was raised in the appellant’s brief following trial. That being so, it is my respectful opinion that the learned trial judge was obliged to decide whether he would consider the issue. If he decided to do so, he would have decided whether the breach of s. was made out, and if it was, whether the evidence should be excluded. The Crown suggests that it should be assumed that the trial judge decided the issue was not properly before him, and was not dealt with for that reason. am unable to make that assumption. It is equally possible that the learned trial judge concluded that the argument lacked merit, or that he did not consider the issue at all. [57] As the appellant notes, Sheppard, 2002 SCC 26 (CanLII), [2002] SCR 869 confirms that trial judge has duty to provide reasons. The sufficiency of those reasons is not measured against standard of perfection, or at large. Rather, it is measured on functional basis. As noted by Binnie J., writing for the court: 24 ...the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be. 25 The issue before us presupposes that the decision has been appealed. In that context the purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision (which embraces both errors of law and palpable overriding errors of fact). If deficiencies in the reasons do not, in particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. That provision limits the power of the appellate court to intervene to situations where it is of the opinion that (i) the verdict is unreasonable, (ii) the judgment is vitiated by an error of law and it cannot be said that no substantial wrong or miscarriage of justice has occurred, or (iii) on any ground where there has been miscarriage of justice. [58] In this case, the trial judge did not comply with this duty in relation to the Charter issue. If he had done so, and had permitted the accused to raise the issue, he would have been faced with mixed question of fact and law, which among other things, raised issues of credibility in relation to the evidence of the police officers. That determination is for trial judge. am accordingly unable to determine whether the failure to give reasons, and thus the potential failure to consider the issue at all, resulted in miscarriage of justice. In the result, the appeal should be allowed on this ground as well. 6. Should the prosecution be stayed based on the basis that fourth trial would constitute an abuse of process? [59] Given that have decided that the appeal should be allowed, must decide whether it would constitute an abuse of process for the appellant to face fourth trial. In this case, there is no issue of trial fairness. Accordingly, the particular species of abuse of process at issue is the “residual category”, which is concerned with state conduct that impacts the integrity of the justice system. In Babos, 2014 SCC 16 (CanLII), [2014] SCR 309, the court clarified the approach to be taken in deciding whether stay of proceedings should issue in such cases. Moldaver J., who delivered the opinion of unanimous court, summarized the test to be applied as follows: 32 The test used to determine whether stay of proceedings is warranted is the same for both categories and consists of three requirements: (1) There must be prejudice to the accused's right to fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54); (2) There must be no alternative remedy capable of redressing the prejudice; and (3) Where there is still uncertainty over whether stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having final decision on the merits" (ibid., at para. 57). [60] As to the first element of this three part test, Moldaver. noted as follows: 35 ...when the residual category is invoked, the question is whether the state has engaged in conduct that is offensive to societal notions of fair play and decency and whether proceeding with trial in the face of that conduct would be harmful to the integrity of the justice system. To put it in simpler terms, there are limits on the type of conduct society will tolerate in the prosecution of offences. At times, state conduct will be so troublesome that having trial even fair one will leave the impression that the justice system condones conduct that offends society's sense of fair play and decency. This harms the integrity of the justice system. In these kinds of cases, the first stage of the test is met. [61] Further, the court confirms, as has been clear since the decision in Keyowski, that while the residual category is generally invoked as result of state misconduct, misconduct is not prerequisite to finding that there is an abuse of process, or to stay. As the court states at para. 37: Circumstances may arise where the integrity of the justice system is implicated in the absence of misconduct. Repeatedly prosecuting an accused for the same offence after successive juries have been unable to reach verdict stands as an example... (see, e.g., R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] S.C.R. 657) [62] Dealing with the second and third elements of the test in the context of the residual category case, the court further notes as follows: 39.. Where the concern is trial fairness, the focus is on restoring an accused's right to fair trial. Here, procedural remedies, such [page325] as ordering new trial, are more likely to address the prejudice of ongoing unfairness. Where the residual category is invoked, however, and the prejudice complained of is prejudice to the integrity of the justice system, remedies must be directed towards that harm. It must be remembered that for those cases which fall solely within the residual category, the goal is not to provide redress to an accused for wrong that has been done to him or her in the past. Instead, the focus is on whether an alternate remedy short of stay of proceedings will adequately dissociate the justice system from the impugned state conduct going forward. ... 41 ...when the residual category is invoked, the balancing stage takes on added importance. Where prejudice to the integrity of the justice system is alleged, the court is asked to decide which of two options better protects the integrity of the system: staying the proceedings, or having trial despite the impugned conduct. This inquiry necessarily demands balancing. The court must consider such things as the nature and seriousness of the impugned conduct, whether the conduct is [page326] isolated or reflects systemic and ongoing problem, the circumstances of the accused, the charges he or she faces, and the interests of society in having the charges disposed of on the merits.5 Clearly, the more egregious the state conduct, the greater the need for the court to dissociate itself from it. When the conduct in question shocks the community's conscience and/or offends its sense of fair play and decency, it becomes less likely that society's interest in full trial on the merits will prevail in the balancing process. But in residual category cases, balance must always be considered. [63] In this case, there is no suggestion of Crown misconduct. Further, there is no evidence as to who is responsible for the various delays along this tortuous road to justice. The issue is whether the mere fact that there have now been three trials and four appeals in the nine years since the date of the alleged offence constitutes an abuse of process, and if so, whether stay should issue. [64] The courts have wrestled with the calls for stay of third or subsequent trial on many occasions. Indeed, the learned trial judge in this case considered the issue in relation to the third trial, and, relying primarily on Keyowski, found as follows (at para. 35 of the trial decision): 35 can only echo what both the Saskatchewan Court of Appeal and the Supreme Court of Canada have stated. While third trial in Mr. Lundrigan's case may stretch the limits of the community's sense of fair play, it does not exceed them. Impaired drivers continue to occupy the public mind in terms of road safety and the unnecessary death and injury that continues to result from individuals who continue to drink and drive despite the draconian increase in financial penalties and loss of driving privileges. This accused has not suffered negative publicity and the proceedings while lengthy have been as result of properly brought and prosecuted appeals which do take time to wend their way through the legal system. [65] In Keyowski, the issue was whether the appellant should stand trial for third time on charge of criminal negligence causing death. The first two trials ended with hung juries. The trial judge stayed the third trial, decision that was overturned by majority of the Saskatchewan Court of Appeal. Although the Supreme Court of Canada disagreed with the majority of the Saskatchewan Court of Appeal as to whether prosecutorial misconduct was required before stay could issue, it agreed in the result, finding that this was not one of the “clearest of cases” which would justify stay. The court noted that it was serious charge, that the proceedings had not occupied an undue amount of time, and that the accused had not been held in custody. As result, and in the words of Wilson J.: (at para 4) third trial may, indeed, stretch the limits of the community's sense of fair play but does not of itself exceed them. In these circumstances, and having regard to the seriousness of the charge, think that the administration of justice is best served by allowing the Crown to proceed with the new trial. [66] In Jack, 1997 CanLII 356 (SCC), [1997] SCR 334, the court considered an application for stay of fourth trial for first-degree murder charge. The court’s reasoning is of particular interest. The victim disappeared in December 1988. The first trial began in September 1990. Following successful appeal, second trial was held in September 1992, resulting in verdict of not guilty in October 1992. Following successful appeal to the Manitoba Court of Appeal and the Supreme Court of Canada, third trial was held from January to March 1995, resulting in conviction. The appeal of that conviction was refused by the Manitoba Court of Appeal. However, Scott C.J.M. commented as follows in Jack (1996), 1996 CanLII 1889 (MB CA), 113 Man (2d) 260 (QL) (Man CA) [Jack] at para 11: …In my opinion it would be very rare case indeed where putting an accused in jeopardy with respect to serious charge for the fourth time would not constitute breach of sec. of the Charter, and an abuse of process sufficient to warrant judicial stay of proceedings under sec. 24(1) of the Charter. [67] In judgment dated June 20, 1997, Jack, 1997 CanLII 356 (SCC), [1997] SCR 334 the Supreme Court of Canada allowed Mr. Jack’s appeal, but stayed the prosecution. Lamer C.J. commented as follows at para (QL): The appellant has asked for stay of proceedings given the numerous trials and appeals the accused has been subjected to. Since the Court of Appeal of Manitoba gave reasons, with which we are in full agreement, that they would have entered stay had the majority allowed the appeal, stay is therefore entered. [68] In Hunter, (2001) 2001 CanLII 5637 (ON CA), 54 OR (3d) 695 (Ont CA), the Ontario Court of Appeal cited Scott C.J.M.’s statement in Jack with approval, finding that the accused in that case should not be subjected to fifth trial on charge of attempted murder. Over six years had passed since the offence. The court noted that the Crown’s case was not overwhelming, that the appellant had spent lengthy period in custody, and that the appropriate charge may have been assault with weapon rather than aggravated assault and endangering life. [69] In McKenzie, [2004] OJ No 3430 (Ont SCJ) (QL), the court stayed fourth trial on charge of second-degree murder. Approximately seven years had passed since the incident leading to the charge, and the accused had been in custody for four years and eight months. Similarly, in A.L. (2004) 2004 CanLII 32136 (ON CA), 183 CCC (3d) 193 (Ont CA), the Ontario Court of Appeal stayed fourth trial on charge of sexual assault. The accused have been convicted on three previous occasions. As the court there notes, comparing the facts to Keyowski, with the delay was approximately four years: 19 [20] By contrast, in this case, what is proposed is fourth trial. There has been lengthy delay of almost thirteen years (three times the delay in Keywoski). The appellant has admittedly been on bail for most of that time except for having served about month and half of the sentence and this is unquestionably serious charge. We also accept that neither the Crown nor the complainant is responsible for the errors that led to the three successful appeals. However, prosecutorial misconduct is not prerequisite to finding of an abuse of process. See Keywoski at p. 483 and R. v. Conway (1989), 1989 CanLII 66 (SCC), 49 C.C.C. (3d) 289 (S.C.C.) at 302. To continue these proceedings would, in our view, stretch the limits of the community's sense of fair play beyond the breaking point. This is one of those clearest of cases that justify stay of proceedings. [70] See also Huard (1998), 1998 CanLII 27955 (MB QB), 127 Man (2d) 211 (Man QB), where Glowacki J. stayed fourth trial on charge of driving with blood alcohol content in excess of the legal limit. The court referred to the fact that the accused had spent more than $800 on transcripts, now resided in British Columbia, and had his license suspended for period after the third trial. [71] In Badgerow, 2014 ONCA 272 (CanLII), 311 CCC (3d) 26 [Badgerow] (leave to appeal refused), the court reached the opposite conclusion, ordering that fourth trial be held in relation to first-degree murder charge relating to 1981 murder which first went to trial in 2001. The court referred (at paras. 194-196) to the reasoning in Jack, finding that it did not have to decide whether as suggested by Scott C.J.M. fourth trial for serious offence will generally be an abuse of process. It emphasized that the Crown did not have the opportunity at the first three trials to present certain highly probative and admissible evidence. It also emphasized that stay will be granted on the basis of abuse of process falling within the residual category only in exceptional and very rare circumstances. Further, as the court notes: 202 The comments in Jack that fourth trial of serious charge would be very rare can, in my view, be reconciled with these observations. Proceeding with fourth trial for murder may, in some cases perhaps many cases fall within the "exceptional and very rare" cases in which stay is warranted. [72] Badgerow demonstrates that stay is not automatic merely because an accused has been tried three times. The decision turns on the facts. The question, accordingly, is what factors should be taken into account. In his dissenting judgment in Keyowski, (1986) 1986 CanLII 157 (SK CA), 49 Sask 64 (Sask CA), Bayda C.J.S. identified the following non-exclusive list of factors (at para 35) which has been referred to in subsequent cases: (1) How many previous opportunities has the Crown had to present its case to jury on the charge in issue? (2) How serious is the charge in terms of loss of life, injury, loss of property? Is the mental element of the charge one of intent or recklessness? (3) How strong is the Crown's case? Are the chances reasonably good that fresh jury will reach verdict? Has the Crown overcharged? (4) Would the failure to proceed with the trial before fresh jury create danger to the public by reason of the accused's character and background? How strong is the possibility of repetition of the offence by the accused? (5) What punishment in terms of incarceration, emotional stress, pangs of conscience, loss of dignity and self respect, loss of income, legal costs and the like, has the accused undergone to this point? (6) Has the prosecution generally shown fairness and competence in handling the proceedings? (7) What length of time has elapsed since the proceedings were first instituted? (8) What is the physical and mental health of the accused? (9) What are the views of the complainant? [73] In this case, it is my view that there would be prejudice to the integrity of the justice system that would be manifested or aggravated if the appellant is tried a fourth time. That is so despite the fact that there was no prosecutorial misconduct, no punishment yet visited on the appellant, and clear and compelling public interest in prosecuting offences of this kind. The toll in property damage, injury and death resulting from the scourge of impaired driving has been strongly, frequently and properly emphasized by the courts in this and other provinces. Although the appellant, unlike the accused in Badgerow, is not charged with one of the most serious of criminal offences, driving with blood alcohol content in excess of the legal limit is serious offence. [74] However, 9 ½ years have now passed since the incident resulting in the charge. That is an extraordinarily long time to live with prosecution. Further, the facts are less serious than they are in some cases combining alcohol and driving. The appellant showed no signs of impairment. He recognized that he presented danger, and had pulled onto side road with the intention of sleeping before continuing his journey. There was no injury or loss of life, and thus no complainant other than the Crown representing the public interest. There is no evidence that there will be fresh danger to the public if the accused is not convicted. [75] As to the second element of the test, there is no other remedy capable of redressing the prejudice to the integrity of the justice system. In my view, fourth trial, almost decade after the incident at issue, would stretch the limits of the community's sense of fair play beyond the breaking point. The only way to avoid that result is to order stay. [76] To the extent that there is any doubt remaining, it is also my view that the balancing of interests called for by the third test confirms that this is one of those “clearest of cases” which call for a stay of proceedings. My reasons for that conclusion are those referred to in relation to the first and second elements of the test. would also note that stay based on the extraordinary facts of this case will not send signal to the public that the court takes drinking and driving offences any less seriously than it has in the past. F. CONCLUSION [77] The appeal is allowed, and it is hereby ordered that the proceedings against the appellant are stayed. J. B.A. BARRINGTON-FOOTE QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 386 Date: 2015 03 06 Docket: QB 303 of 2012 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and DAVID JOHN LUNDRIGAN Counsel: Andrew Wyatt for the respondent David Lundrigan self-represented, appellant CORRIGENDUM DATED March 6, 2015 BARRINGTON-FOOTE J. to JUDGMENT DATED December 4, 2014 (2014 SKQB 386) [1] Paragraphs 21, 22 and 23 of my judgment dated December 4, 2014 shall be amended to read as follows: [21] There is, however, second issue, the answer to which disposes of this ground of appeal. As the Crown notes, the appellant had care and control of the vehicle until he parked on the grid road. Further, given that he did so less than two hours before the administration of the Intoxilyzer test, the Crown was entitled to rely on the presumptions in s. 258(1)(c) of the Criminal Code to prove that the appellant’s blood alcohol level was the same at the time of the offence as that disclosed by the breath tests. It was, accordingly, not necessary for the Crown to prove that the appellant had care and control when he was parked in order to prove the offence. As such, the fact that the learned trial judge committed an error of law in relation to the test to be applied in determining whether the appellant had care and control after the appellant stopped did not result in a substantial wrong or miscarriage of justice. [22] The appellant submitted that the Crown is not entitled to prove the offence in this fashion, as this argument was not raised at trial. With respect, do not agree. Following the close of the appellant's case at trial, the Crown notes (transcript, p. 220) that the decision in Shuparski, 2003 SKCA 22 (CanLII), 232 Sask is "extremely important" in relation to the issue of care and control in this case. He then refers to the "critical overlap" period. The Crown thereby signaled that it could prove the offence by proving that the accused drove his vehicle not less than two hours before the administration of the first Intoxilyzer test. Further, this line of reasoning was not only referred to in the trial judge's reasons (at para. 20), but was fully disclosed at pps. 29-30 of the Crown's factum on this appeal. [23] In the result, the appellant cannot claim that this argument was raised for the first time on appeal, or that he was surprised or prejudiced in his ability to respond. There is no suggestion, and no basis to conclude, that the appellant failed to lead relevant evidence as he did not know this issue would be argued. Rather, it is quite clear, based on the evidence as a whole - including the appellant\'s admissions as to when he drove to the grid road - that the appellant had care and control, not more than approximately ten minutes before he was first approached by the police. The appeal on this ground is accordingly dismissed. J. B.A. BARRINGTON-FOOTE

The appeal was allowed, and rather than order a new trial, the charge was stayed. The issues were decided as follows: 1) the trial judge was found to have applied the wrong test as to de facto care and control of the vehicle. The appeal on the first ground was dismissed, however, because the Crown could rely on the presumption in s. 258(1)(c); the accused had been driving 10 minutes before the stop and within two hours of the breath tests, so whether he was in de facto care and control at the time of the stop was irrelevant and did not result in a miscarriage of justice; 2) there was no evidence of the failure to observe the appellant while the breath tests were administered, nor was there a suggestion of the significance of the failure to do so, therefore, the appeal on that ground was dismissed; 3) the trial judge also addressed the issue of evidence if the 2008 amendments did not apply and the appellant was therefore not prejudiced in this regard. The appellant nonetheless argued that the trial judge erred in law by misapprehending evidence. The appeal court concluded that the trial judge did not err in law because his reasons did not disclose that he failed to consider relevant evidence relating to a material issue; 4) the Crown conceded that the 2008 amendments did not apply retroactively. The appeal court found that the trial judge was incorrect in giving a strong message to the unrepresented appellant that there was no point in tendering evidence on the accuracy of the Intoxilyzer results. The trial judge’s comments strongly suggested that the only expert evidence that would be relevant would be with respect to equipment malfunction and not operator error. The appeal was granted on this ground because the trial judge’s comments were found to compromise trial fairness resulting in an error of law; 5) the s. 9 Charter breach was not raised by the appellant at trial but it was raised in his brief following trial, and therefore the appeal court found that the trial judge was obliged to decide whether or not to consider the issue. The appeal was also allowed on this ground because the trial judge did not comply with his duty to consider the issue and the appeal court could not determine whether the failure to give reasons resulted in a miscarriage of justice; and 6) there was no issue of trial fairness. The appeal court concluded that there would be prejudice to the integrity of the justice system that would be manifested if the appellant had a fourth trial. Nine and a half years passed since the offence date and the facts of the case were less serious than some drinking and driving cases. Also, there was no other remedy available to remedy the wrong. The balancing of interests also led the court to conclude that this was one of those clearest of cases calling for a stay of proceedings.

9_2014skqb386.txt

J. Q.B. A.D. 1994 No. 2980 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: RICHARD ALLEN KLASSEN and HER MAJESTY THE QUEEN RESPONDENT Richard Klassen for himself W. Holmes for the Crown FIAT BAYNTON J. September 30, 1994 The accused applicant applies for a review of theterms of his judicial interim release. Although he has referred to his Charter rights in his application, he acknowledges that the required notice has not been given and that he is not seeking Charter remedy. He declined an adjournment to enable him to bring Charter application and with the co-operation of the Crown, copies of the record were produced and filed with the court to enable the accused's review hearing under s. 520 of the Code to proceed. The accused is charged with four counts of defamatory libel under ss. 300 and 301 of the Code. He and his counsel consented to judicial interim release order containing certain terms. The term objected to by the accused is that he "refrain from picketing of any kind or carrying placards of any kind". He seeks an amendment by adding thephrase "regarding Sgt. Brian Dueck or Carol Bunko-Ruys". These two individuals are the complainants named in the four charges. The charges arose as result of picketing by the accused while carrying placard exhibiting words that allegedly constitute defamatory libel. Presumably the picketing prohibition term of the accused's release from custody was considered necessary by the justice who made the order to address the issue of the substantial likelihood that the accused would commit criminal offence if he were not prohibited from picketing prior to his trial. In his submission, the accused indicated that he wants to be permitted to continue to picket or carry placards pending his trial. He stated that if the desiredamendment is made he will restrict his picketing to lawfulactivity. Yet he maintains that the picketing he did, which resulted in the charges on which he now has been released pending trial, was lawful. I am satisfied in the circumstances and nature ofthis case, that the picketing prohibition term imposed by thejustice with the consent of the accused, was reasonablyjustified as a condition of the release of the accused fromcustody. But for this condition the justice might well have ordered that the accused be detained in custody on the ground that there was substantial likelihood that the accused would commit criminal offence pending his trial. I am also satisfied that if the amendment isgranted as sought by the accused, there still remains asubstantial likelihood he will commit a criminal offence or aninterference with the administration of justice. have come to this conclusion on consideration of the nature of the offences with which the accused has been charged, on the circumstances surrounding the alleged commission of the offences, on the accused's stated intention to continue picketing, and on his view of what is lawful activity. Theapplication is denied and the existing order stands.

FIAT The accused was charged with four counts of defamatory libel. The alleged defamatory words were on a placard he exhibited while picketing in a public place. He was released from custody on his consent to a term that prohibited him from picketing or carrying placards pending his trial. He later applied for a review of the order and sought an amendment permitting him to picket lawfully. HELD: Application dismissed. Amendment refused. If the accused was permitted to picket there was a substantial likelihood that he would commit another offence while on bail pending his trial on the four existing charges. The justice granting the judicial interim release order was therefore correct to impose a complete prohibition on picketing.

1994canlii5055.txt

THE COURT OF APPEAL FOR SASKATCHEWAN SERVICE EMPLOYEES' INTERNATIONAL UNION, LOCAL 336 (Applicant) RESPONDENT and EASTEND WOLF WILLOW HEALTH CENTRE (Respondent) RESPONDENT and CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 2297 (Respondent) APPELLANT and SASKATCHEWAN LABOUR RELATIONS BOARD (Respondent) RESPONDENT Coram: The Honourable Mr. Justice Cameron The Honourable Madam Justice Gerwing The Honourable Mr. Justice Sherstobitoff COUNSEL: Mr. N.R. McLeod for the appellant Mr. D.E.W. McIntyre for the respondent Wolf Willow Mr. T.F. Koskie Ms. St. Cyr for the respondent Service Employees Mr. P.N. McDonald for the respondent Labour Relations Board DISPOSITION: Appeal Heard: 22 January 1993 Appeal Allowed: 22 January 1993 (orally) Reasons: 28 January 1993 On Appeal From: Q.B. 2717/92, J.C. of Saskatoon Appeal File: 1331 Reasons by: The Honourable Madam Justice Gerwing In concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff GERWING J.A. This is an appeal from an order setting aside, as premature, an order of the Labour Relations Board directing that a vote be held to determine which of two unions should represent the employees of the Eastend Wolf Willow Heath Centre (the "Centre"). Two health care institutions, one residential lodge and one hospital, each of whose employees were represented by different union, were to be integrated into one new institution, this Centre. It was undisputed that the long term intent was this integration. The application to the Board, by of the appellant C.U.P.E. to determine if it represented majority of the employees, was made under s. 37 of The Trade Union Act, R.S.S. 1978, c. T-17. That sections reads as follows: 37 Where business or part thereof is sold, leased, transferred or otherwise disposed of, the person acquiring the business or part thereof shall be bound by all orders of the board and all proceedings had and taken before the board before the acquisition, and the orders and proceedings shall continue as if the business or part thereof had not been disposed of, and, without limiting the generality of the foregoing, if before the disposal trade union was determined by an order of the board as representing, for the purpose of bargaining collectively, any of the employees, affected by the disposal or any collective bargaining agreement affecting any of such employees was in force the terms of that order or agreement, as the case may be, shall, unless the board otherwise orders, be deemed to apply to the person acquiring the business or part thereof to the same extent as if the order had originally applied to him or the agreement had been signed by him. The Labour Relations Board concluded, after reviewing the state of integration and the degree of operation of the Centre, that its jurisdiction was engaged and, further, that it was appropriate to make the order sought. The Board said, inter alia: Under Section 37 of The Trade Union Act, it is the transfer of something which is recognizable as the same `business' or at least `part of business' that serves to impose on the successor the obligation to assume the collective bargaining relationship to which the predecessor was party. The Board is satisfied that, whatever the outcome of the current consultation and approval process, the Eastend Wolf Willow Health Centre will provide services which go beyond those provided in long-term care facility, and which will comprehend services which continue or resemble those provided up to now at Eastend Union Hospital. We are also satisfied that the Health Centre is correct to regard itself as successor employer to both of the institutions which previously served Eastend. When the matter was raised in Queen's Bench Chambers on an application to quash, many issues, including the use of the transcript and the current state of the law in the Supreme Court on the standard of review of decisions of board of this type were raised. The chamber judge did indeed, after concluding it was appropriate for him to do so, conduct an analysis of the evidence, addressing what he thought to be the pivotal question, that is, was there any evidence upon which the Board could conclude that the Centre was successor employer. He said: However, the Board goes on to say that `the employer (i.e. the Centre) characterizes itself as successor employer for employees of both of the previously existing facilities'. In my view, this statement is not supported by the evidence—the evidence of Mr. Grant does not indicate that he considers that the Centre is presently the employer of the employees previously employed by the Lodge and the Hospital, although it is fair to say that he envisages this will be the case when the appropriate agreements have been made, the necessary legislation passed, the additional construction completed and all of the employees then being housed in the new buildings. But my above review of the evidence makes it clear that none of these steps had occurred at the time of the hearing. Taking this view, he then quashed the order for vote as premature. In the notice of appeal issue was taken with, inter alia, the use of transcript and the question of the current status and the degree of review, particularly as set forth in National Corn Growers Assn. v. Canada (Canadian Import Tribunal) (1990), 1990 CanLII 49 (SCC), 74 D.L.R. (4th) 449 and W.W. Lester (1978) Ltd. v. U.A., Local 740 (1990), 1990 CanLII 22 (SCC), 76 D.L.R. (4th) 389. However, before these issues need to be canvassed, one must turn to more fundamental question. Facts, of course, do not exist in vacuum. The Labour Relations Board and the chamber judge both focused on facts they found to be significant. More fundamentally, however, each had in mind an interpretation of s. 37. An analysis of the facts is impossible without deciding what the superstructure, that is, the meaning of s. 37, is. The Board, in our view, took less rigorous and legalistic view of the meaning of successor in s. 37 than that ultimately taken by the chamber judge. The Board, in its decision, was not prepared to limit itself to indicia of transfer of title or assets of nature which might be more pertinent in the context of, for example, financing arrangements, insurance contracts or other such matters. It determined that for the purposes of labour relations less rigorous characteristics than formal legal transfer were adequate to engage s. 37. It concluded it ought, as it put it, to attempt to "discern the beating heart of an enterprise" and relied on factors such as the fact that the Centre had been incorporated with board of directors, which board was composed of the directors of the two founding institutions. It also noted that funding had been approved, new building had been built and the first phase of construction was complete. Employees had been selected in the name of the Centre and had begun work. Further administration was being carried out in the name of the Centre and residents had moved into the new building. It saw this as adequate to find the new entity to be successor employer. The chamber judge turned his attention to these facts, and concluded as noted above that they were not in his view adequate to engage s. 37. However, it is clear that his analysis and rejection of the evidence before the Board was based on more strict and rigorous definition of what constitutes successor employer under s. 37. We are of the view that the fundamental question which he failed to answer was whether the Board's interpretation of s. 37 was patently unreasonable. To emphasize facts of lesser traditional legal significance in the Board's judgment and those of more concrete significance in parallel areas for example, property law, begs the real question. The authorities, including Corn Growers, supra, make it clear that it is within the purview of the Board to interpret s. 37 and on an application to quash, the first question to be asked by the reviewing court is whether the interpretation is patently unreasonable. To jump immediately to an analysis in the facts premised on different interpretation does not serve. In the circumstances we have looked at the interpretation of the Board of s. 37 and cannot in the circumstances find it to be patently unreasonable. It does not, as noted, apply to other areas of the law, such as financing, conveyance of property or insurance, where a more precise and predictable delineation of the moment of transfer may be appropriate. The Board is interpreting s. 37 for the purposes of labour law alone. This is its function. We cannot say that the lesser test set by it is patently unreasonable in context. We are of the view that this is the first issue which should have been addressed by the chamber judge. The review of the evidence, given this answer, should have been conducted on the definition put forward by the Board, not on the more restrictive definition of the chamber judge. In summary we are of the view that the Board's findings of fact were unimpeachable, that its construction of s. 37 was not patently unreasonable, and that its conclusion ought not therefore to have been interfered with. We make it clear that in the circumstances, the other issues addressed in the judgment of the chamber judge and sought to be raised in this appeal need not be determined by this Court at this time and we expressly do not comment on them. In the end result, the appeal is allowed with costs on double Column V except, of course, to the Labour Relations Board which has not asked for costs.

Appeal from an order aside, as premature, an order of the Labour Relations Board directing that a vote be held to determine which of two unions should represent the employees of the Health Centre. Two health care institutions, one a residential and one a hospital, each of whose employees were represented by a different union, were to be integrated into one new institution, this Centre. HELD: It is within the purview of the Board to interpret s.37 and on an application to quash, the first question to be asked by the reviewing court is whether the interpretation is patently unreasonable. To jump immediately to an analysis of the facts premised on a different interpretation does not serve. The interpretation of the board of s.37 was not patently unreasonable. It does not apply to other areas of the law, such as financing, conveyance of property or insurance, where a more precise and predictable delineation may be appropriate. The Board is interpreting s.37 for the purposes of labour law alone. Appeal Allowed.

7_1993canlii5530.txt

Q.B.G. A.D. 1999 No. 2721 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: THE HEIGHT OF EXCELLENCE FINANCIAL PLANNING GROUP INC. APPLICANT (PLAINTIFF) and DARCY BERGEN RESPONDENT (DEFENDANT) R. Shawn Smith, Q.C. for the applicant (plaintiff) Kevin C. Mellor for the respondent (defendant) FIAT SCHEIBEL J. October 22, 1999 [1] The plaintiff, referred to as “TFPG”. seeks an interim mandatory injunction requiring the defendant to:(i) forthwith deliver up to TFPG, or its authorized representative, all files, documents, statements of account, records, plans, software or other TFPG related material respecting clients of TFPG who have had their accounts managed or administered by Darcy Bergen, as well as all TFPG promotional and informational items, signs and the like;(ii) immediately cease and desist from any and all contact, either direct or indirect, with those clients of TFPG whose account was administered or managed by the said Respondent or anyone associated with him or employed by him with a view to soliciting, serving, catering to or attempting to direct away from TFPG such clients or any associate or affiliate of such client, or any person who was a prospective client of TFPG;(iii) make no attempt, either direct or indirect, to solicit from any TFPG client or prospective client, any business of any nature or kind similar to that done by TFPG. II [2] At the outset of the argument counsel agreed that the relief sought in paragraph (i) of the draft order should issue with the right of the respondent to make and keep copies of the documents turned over to the applicant. That part of the order may issue. [3] During argument counsel for the applicant abandoned the relief sought in paragraph (iii). This leaves the issues raised in paragraph (ii) of the draft order to be resolved. [4] The respondent was registered representative of the applicant and entered into Shareholder Advisor Agreement whereby the respondent agreed he would sell and represent only the applicant’s financial products and services which the applicant approved. In exchange for this the respondent received commissions from the applicant. [5] It is alleged the respondent sold unapproved investments of competitor and as result he was terminated pursuant to the agreement. It is also alleged that the respondent continues to refuse to turn over to the applicant its property and client files. As well, the applicant claims the respondent has and continues to breach the “non-solicitation” clause contained in the agreement by carrying on the same business on his own. It is also alleged that the respondent continues to solicit the applicant’s clients. [6] In addition to numerous clauses in the agreement setting out the rights and obligations of the parties, the respondent agreed “that breach by him of any of the provisions contained in the agreement may cause the company great and irreparable injury and damage which cannot be reasonably or adequately compensated in damages in any action in law, and the contractor hereby expressly agrees that the company shall be entitled to the remedies of injunction, specific performance and other equitable relief to prevent breach or recurrence of breach ....” [7] Counsel for the respondent relies on the decision in The Height of Excellence Financial Planning Group Inc. v. Stanley Eric Dixon, [1999] S.J. No. 629 (QL); 1999 SKQB 101 (CanLII) (Q.B.) as support for the position that the application should be denied. That decision involves the same plaintiff and similar facts, but different defendant. In that case the application was dismissed on the grounds the applicant had failed to establish, on balance of probabilities, any irreparable harm and also had failed on the balance of convenience test. [8] That decision, however, did not deal with the provisions of the contract signed by both parties which provides that upon certain breaches of the agreement by the respondent the applicant would be entitled to, among other things, an injunction to prohibit the very breaches that the applicant now complains of. [9] The respondent claims that this agreement is one sided and favours the applicant and that the respondent did not have independent legal advice prior to signing the contract. [10] have no doubt the agreement favours the applicant but there is no reason in law why an informed person cannot sign an agreement which favours the other party. The respondent represented, warranted and agreed he had the opportunity to seek independent legal advice prior to signing the agreement. It is not clear whether he exercised that option even though he now claims he did not. [11] am not able to conclude that the agreement is unconscionable nor am able to find that the agreement is one which would be against public policy. It merely sets out the terms both parties agreed to for valuable consideration. [12] The issue of contractual right to have injunctive relief is not conclusive. It is only one factor, but it is an important factor in the exercise of the discretionary power of the court. [13] This issue is discussed in S. M. Waddams, The Law of Contracts, 4th ed. (Toronto: Canada Law Book Inc., 1999) at §695, pp. 512 and 13 where the author states: Where contract expressly provides that the promisor will submit to specific remedies, the court’s attitude has been to take account of the provision, as relevant to the exercise of judicial discretion, but not to admit the parties’ agreement as controlling. In the Alabama case of Stokes v. Moore [77 So. 2d 331 (1955)], the Supreme Court of Alabama said: We do not wish to express the view that an agreement for the issuance of an injunction, if and when stipulated state of facts arises in the future, is binding on the court to that extent. Such an agreement would serve to oust the inherent jurisdiction of the court to determine whether an injunction is appropriate when applied for and to require its issuance even though to do so would be contrary to the opinion of the court. The court went on to say, however, that “The Provision for an injunction is important in its influence upon an exercise of the discretionary power of the court to grant temporary injunction”. similar view was taken by Branson, J., in Warner Bros. Pictures Inc. v. Nelson [[1937] K.B. 209], where the express agreement of movie actress that the contract should be enforceable by injunction was held to be relevant and persuasive, though not determinative. It is appropriate in this way to give weight to the parties’ agreement, but altered circumstances may give to decree of specific enforcement an effect that had not been anticipated and might be oppressive, and consequently the court, which has to make and enforce the order, can never relinquish ultimate control of it and responsibility for it. [14] The judgment in Dixon, does not deal with the issue of contractual right to this relief. It is not clear if it was even argued before the chambers judge. In any event, as have stated, it is an important factor in this case. [15] In order to succeed the applicant must also satisfy the Court (1) that the right to an interlocutory injunction is clear; (2) that there is serious question to be tried and there is strong prima facie case; (3) that irreparable harm will result in the absence of the injunction; and (4) if there is doubt as to the possibility of an adequate remedy in damages, there must be determination, as to which party, on balance of convenience, is likely to suffer greater harm from the granting or refusal of injunctive relief. See Deloitte, Haskins Sells v. Brooker, Robinson, O’Grady and Ernst Whitney (1982), 1982 CanLII 2443 (SK QB), 23 Sask. R. 58 (Q.B.), Lutes v. Board of Education of Prairie View School Division No. 74 (1992), 1992 CanLII 7997 (SK QB), 101 Sask. R. 232 (Q.B.) and Dixon, supra. [16] On the material filed and taking into account the respondent agreed to the remedy sought, am satisfied the applicant has met the test for injunctive relief. However, am not prepared to grant the relief as set forth in paragraph (ii) of the draft order. It is too restrictive and denies other individuals freedom of choice as to which party they wish to deal with on their investments. Both counsel have agreed that if the applicant succeeds that should make the order set out below. [17] In addition to the relief granted above set forth there will be an order that the respondent shall:(a) immediately cease and desist from any and all contact, either direct or indirect, with those clients of TFPG whose account was administered or managed by the said respondent or anyone associated with him or employed by him with a view to soliciting, serving, catering to or attempting to direct away from TFPG such clients or any associate or affiliate of such client, or any person who was a prospective client of TFPG, until further order of the court, saving that the above restriction shall not prevent a client or prospective client of TFPG from, of their own volition, contacting, consulting or engaging in any business with Darcy Bergen and further, the above restriction shall not operate to prevent or hinder Darcy Bergen from advertising his services in any media form or outlet, including seminars.

FIAT. The former registered representative of TFPG was terminated for selling unapproved investments in breach of a Shareholder Advisor Agreement which permitted the sale of TFPG's financial products and services only. TFPG sought an interim mandatory injunction requiring the respondent to return all materials and files respecting TFPG's clients, to cease any contact with its clients, and to make no attempt to solicit any current or prospective client. HELD: The respondent was ordered to immediately cease all contact with TFPG clients whose account the respondent, or anyone associated with him, had administered with a view to soliciting or directing a client, affiliate or associate away from TFPG. The restriction would not prevent a client or prospective client from engaging in any business with the respondent nor was he prevented from advertising his services. 1)It was agreed that the respondent should return all of TFPG's files and materials with a right to make and keep a copy. 2)TFPG abandoned the relief sought respecting solicitation of any business of any nature similar to that of TFPG from any TFPG client or prospective client. 3)The agreement merely set out the terms both parties agreed to for valuable consideration. It was not unconscionable nor against public policy. The respondent had warranted that he had an opportunity to seek independent legal advice prior to signing the agreement. The applicant met the test for injunctive relief but the relief as set out in the draft order was too restrictive and denied others freedom of choice as to which party they wished to deal with. 4)A contractual right to injunctive relief is only one factor. The applicant must establish that the right to interlocutory injunction is clear; there is a serious question to be tried and a strong prima facie case; that irreparable harm will result; if there is a doubt as to whether there is an adequate remedy in damages there must be a determination, on a balance of convenience, which party is likely to suffer a greater harm.

1999skqb142.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 514 Date: 2009 12 31 Docket: D.I.V. 96/2007 Judicial Centre: Regina BETWEEN: PETER LORAN and DONNA LORAN Counsel: Ian D. McKay, Q.C. for the petitioner James J. Vogel for the respondent FIAT WILSON J. December 31, 2009 [1] The petitioner father and the respondent mother are the parents of two children, namely, Adam Loran, born April 25, 1995 and David Loran, born March 11, 1992. The parties attended pre-trial conference in May, 2008 and, to their credit, were able to reach an agreement with respect to the issue of child support for the two children. The party’s agreement was finalized by way of consent order dated September 26, 2008 granted by Gunn, J. [2] The mother has filed a motion in this matter requesting an order quantifying child support arrears which she says are due and owing pursuant to the Gunn J. order of September 26, 2008. In addition, she requests that the court determine the ongoing child support amount to be paid by the petitioner father. During the hearing of this matter, questioned whether this application was more in the nature of variation of the Gunn J. order. The mother took the position that her application was not variation and that it was more in the nature of an accounting exercise. However, it is clear that there has been change since September, 2008 with respect to the residency of one of the children of the marriage, namely, David. As the Gunn J. order is premised on the child, Adam, residing with the mother and the child, David, residing with the father, and David no longer lives with either parent, clearly some variation is warranted both with respect to quantifying arrears and ongoing support. [3] The September 26, 2008 child support order is complex and, in my view, allows for unfortunate ongoing conflict between the mother and father regarding the issue of child support. The applicable paragraphs of the order read as follows: 1. IT IS HEREBY ORDERED THAT child support shall be paid by the Petitioner, Peter Loran to the Respondent, Donna Loran for the support of Adam Loran, born April 25, 1995 and by the Respondent, Donna Loran to the Petitioner, Peter Loran for the support of David Loran, born March 11, 1992. Child support shall be payable in accordance with the provisions of the order. 2. IT IS FURTHER ORDERED AND JUDGED THAT for purposes of the child support obligation set out herein, the income of the Respondent, Donna Loran shall be deemed to be the greater of $61,500.00 and actual income earned for the period of time June 1, 2008 to April 30, 2009. Commencing May 1, 2009 and thereafter, the income of the Respondent, Donna Loran, shall be deemed to be the greater of $75,000.00 and the actual income earned. 3. IT IS FURTHER ORDERED AND JUDGED THAT support for the children will currently be set in accordance with the split custody provisions of The Federal Child Support Guidelines. Commencing June 1, 2008 and until April 1, 2009, the child support payment of the Respondent to the Petitioner shall be based on an income of $61,500.00 or $529.00 per month. The child support payment of the Petitioner, Peter Loran to the Respondent shall be based on an income of $117,000.00 and shall be set at $999.00 per month. The Petitioner, Peter Loran, shall pay to the Respondent, Donna Loran set off amount of $470.00 per month commencing June 1, 2008, to be adjusted as set out herein. 4. IT IS FURTHER ORDERED AND JUDGED THAT on May 1st of each year, child support shall be recalculated for the preceding 12 months based on the actual Guideline income for the Petitioner and the Respondent’s imputed income or actual income as set out in the preceding paragraph. Any required payment to adjust support for the preceding 12 months for Section Guideline support and Section support shall be made within 30 days of May 1st. That the Petitioner and the Respondent shall provide the other with copies of their income tax returns by April 30th of each year and copies of Notices of Assessment or Reassessment from Canada Revenue Agency once received. 5. IT IS FURTHER ORDERED AND JUDGED THAT the Section expenses shall be prorated as set out herein and adjusted in accordance with paragraph 4. The allowable section expenses shall be for the following: (i) Medical and dental expenses, excluding insurance reimbursement over $100.00 per annum; (ii) water polo; (iii) drums; (iv) Camp Monahan; (v) Art classes; (vi) Football; (vii) Lacrosse; and (viii) And any other activities agreed to between the Petitioner and the Respondent. 6. IT IS FURTHER ORDERED AND JUDGED THAT the section expenses shall be adjusted in accordance with paragraph 4. For the period of time June 1st, 2008 to April 1, 2009, the Petitioner shall, at first instance, pay 66% of the section expenses and the Respondent shall pay 34%. The Petitioner shall pay the expenses for David at first instance and the Respondent shall pay the expenses for Adam at first instance. Thereafter they shall provide the other with copies of the actual receipt. The person not paying such expense shall be required to pay their proportionate share within 15 days of receiving the receipt from the other. [4] As set out in the order, support was to be paid by the father on the basis of split custody arrangement and based on certain set incomes for the father and mother for the June 1, 2008 to April 1, 2009 period. In accordance with paragraph of the order, the parties were to recalculate the amount for the preceding 12 months, as at May 1, 2009, based on the actual Federal Child Support Guidelines (SOR/97-175, as am) (the “Guidelines”) income for the father which income would obviously be determined after income tax returns were exchanged. [5] There is no dispute that the child, Adam, has continually resided with the mother since the child support order was made on September 26, 2008. With respect to the child, David, there is no dispute that he resided with the father from March, 2008 to September, 2008 and then moved to the home of the mother where he resided from October, 2008 to August 31, 2009. In September, 2009, David moved out of the home of the mother into friend’s home. The father says that he has been providing funds for David in the sum of $175.00 per week. The mother says that she also contributes to David’s care but not in set weekly or monthly amount. She says she provides laundry services, some meals and assists with car payments, cell phone bills and the like. [6] The other substantial change which has occurred is with respect to the husband’s employment. At the time the order was made, the parties were working from the husband’s income for 2007. At that time the husband was working for Conexus and had gross annual salary in the sum of $117,000.00. In 2008, the father’s employment with Conexus was terminated and he was paid severance amounting to 15 months of salary. The severance was the total sum of $128,250.00 and is reflected on the father’s 2008 income tax return. [7] The father was able to locate employment in the financial services field within two months of his termination. He located consulting job with Paradigm in High River, Alberta. The father says that the money he received as severance from Conexus went to cover legal costs and to establish home in High River, Alberta. [8] am being requested by the mother to establish the father’s 2008 income so that the appropriate recalculation can be made in accordance with the order in this matter. The father’s 2008 income tax return reflects the following: Employment income $141,899.97 Interest and other investment income 160.84 Taxable capital gains 31,886.11 Other income $128,250.00 Total $302,196.92 [9] As set out previously, the order requires the parties to base support, for the preceding 12 months, on the “actual guideline income” for the father. The parties do not define how such Guideline income is to be determined. The father’s unusual 2008 taxation year has lead to the parties taking very different positions as to how the father’s income should be calculated. The father argues that it would be most appropriate to average the father’s income for the years 2006, 2007 and 2008 to determine an appropriate income. The father says this would lead to determination of the father’s 2008 income as being the sum of $185,000.00. The mother argues that his income is as set out on line 150 of his tax return. She argues that his total income is the sum of $302,196.00 for the 2008 year and that she is owed substantial amount of arrears for the time period from June 1, 2008 to April 1, 2009. [10] The position of the father with respect to averaging income is not sustainable. If the parties had intended to calculate the father’s income based on an averaging, they would have said so in the order of Gunn J. It is clear upon review of the order that the income established for the father at the time of the order was based solely on his 2007 tax year and not an averaging of his previous three years. [11] Although not specifically argued by the father, it appears he is, by inference, arguing that all or part of the severance he received in 2008 should not be included as income. [12] It is well established law that severance pay represents an acceleration of income that would have been paid over a period of months. Further, it is well established that income for the basis of calculating child support should be determined on the basis of severance package pay plus whatever other earnings the payor may have. [13] The Saskatchewan Court of Appeal in Scory v. Scory (1999), 1999 CanLII 12314 (SK CA), 180 Sask. R. 152 dealt with the issue of severance package income. At para. 21, Cameron J.A. states as follows: ... This is especially so in light of the fact that what he had received under his severance package amounted in large part to income. Indeed the amount he received, apart from that which was attributable to savings and other things, was the equivalent of 18 months salary. It was calculated and paid to him on that basis. And he took this amount into income thereafter for the purpose of paying both income tax and living expenses, as well as for the added purpose of meeting his financial obligations generally. As we noted moment ago, his total income for tax purposes in 1996 exceeded $90,000. His total income income for tax purposes in 1997 amounted to just over $59,000. [14] Similarly in L.R. v. D.T. (1998), 1998 CanLII 13814 (SK QB), 178 Sask. R. 115, McIntyre J. states at para. as follows: The Alberta Court of Appeal dealt with the matter of severance pay in the context of child support obligation in MacDonald v. MacDonald, (1997) 1997 ABCA 409 (CanLII), 209 A.R. 178. agree with their observations that severance pay represents an acceleration of income that would have been paid, in this instance, over period of 11.6 months. Severance pay is intended to be or to replace an ongoing stream of income as if the respondent would have been working. The legal obligation on an employer is to give adequate notice of cessation of employment. Severance pay is simply payment in lieu of that notice. The court in MacDonald found that income for the basis of calculating child support should be determined on the basis of severance pay plus whatever other earnings the payor may have. [15] The fact that the father spent his severance funds on legal fees and to set up his new home in Alberta is, in my view, irrelevant. As argued by the mother, the mother also had substantial legal fees to pay as result of the court proceedings in this matter which included an intense pre-trial conference. For all of these reasons, the severance is included as part of the father’s income. [16] With respect to the capital gain shown on the father’s 2008 income tax return, I have determined that the capital gain is a non-reoccurring amount which should not be included in the determination of the father’s 2008 income. It is clear on the evidence before me that the father agreed, as part of the distribution of the family property between the parties, to assume responsibility for the capital gain on the real estate he was receiving as part of the family property division. This gain does not reflect income actually received by the father and there will be no “year to year” capital gain unless the father has gains on other property. In making my decision, reviewed the decision of Cowan J. from the British Columbia court in Andersen v. Andersen, 1997 CanLII 1163 (BC SC), [1997] B.C.J. No. 2496; (1997), 32 R.F.L. (4th) 177. Cowan J. states at paras. 29 and 30, as follows: 29 The second issue which arises, utilizing the respondent's 1996 total income figure or his 1996 tax return, is whether there should be deducted therefrom the taxable capital gains of $45,247.50 received by him in 1996, leaving an income for the purposes of the Guidelines of $78,943. This capital gain arose when the respondent transferred his interest in the company which he formerly utilized to carry on his practice to his present company. 30 agree that this deduction should be made as it is "non-recurring amount" which the court is entitled to consider in making fair determination of the respondent's annual income in accordance with s. 17(1)(c) of the Guidelines. [17] Having concluded that the father’s 2008 income includes his severance package, his income with his new employer, but not the capital gain, the father’s income for 2008 is set at the sum of $270,300.00. [18] The mother provided chart showing the amount of s. support that should have been paid in accordance with the party’s consent order. In preparing the chart, the mother has recognized that Adam resided with the mother at all times since the date of the order but that David lived initially with the father, then with the mother, and then with friends. As shown on the chart, for the time period from June 1, 2008 through to and including April 1, 2009, the total amount of support due and owing to the mother, under s. of the Guidelines, is sum of $19,721.00. This is based on the father’s income of $270,300.00. accept this figure and order that the father pay to the mother the aforesaid sum forthwith. [19] With respect to the issue of s. expenses, the mother says that if the father’s income is determined to be the sum of $270,300.00 and her income is set out as being $61,500.00, the appropriate proportionate sharing of the s. expenses is 81% for the father and 19% for the mother. agree with this assessment. For the time period from June, 2008 to April, 2009, the mother says the father paid $3,887.00 when he should have paid $4,805.00. The father shall pay the difference, being the sum of $918.00 forthwith. [20] The remaining outstanding issue is with respect to the amount the father should pay commencing May 1, 2009. The mother suggests that, in accordance with the party’s consent order, that the father must continue to pay support from May, 2009 to at least April 30, 2010, based on the 2008 income of the father. This would mean that the father is paying support on an income which have now determined to be the sum of $270,300.00. There is, however, very clear evidence before me that the father will not earn the sum of $270,000.00 in the 2009 taxation year. The father has only one source of income, being his new employment position. In light of the fact that the 2008 year was an extraordinary year for the father given his severance package, it would be unfair to have the father continue to provide support on the basis of an income in the sum of $270,300.00 when the evidence is clear he will earn income of approximately $100,000.00 less than that amount. If the parties were to proceed in accordance with their own agreement and consent order, the father would be forced to pay on his inflated 2008 income. However, the mother would then be forced to remit back to the father the overpayment. [21] As at May 1, 2009, am determining that the father’s income is the sum of $160,000.00, based on the evidence before the court at this time. The father should make payments, commencing May 1, 2009, under both s. and s. of the Guidelines based on his income in the sum of $160,000.00 and the mother’s income of $75,000.00. Although recognize that the father’s income in 2009 may end up at higher amount, the parties will, as their consent order sets out, do re-adjustment as at May 1, 2010, if required. The father is obligated to pay the required amount for two children, based on an income of $160,000.00 for the months from May, 2009 to August, 2009. Commencing September, 2009, and continuing on the first day of each and every month thereafter, the father is required to pay for only one child. am not prepared to downward adjust the father’s payments for Adam, as result of his contributions towards David. It appears that the mother is also assisting David and that David may, in fact, not be child under the law when he turns 18 years of age in March, 2010. [22] have not prepared the calculation of arrears, of both s. and s. support, now due and owing by the father for the time period from May, 2009 to the end of December, 2009. trust the parties will, given my determination of income, be able to calculate what arrears are owing, if any. If the parties cannot do so, leave is granted to return the matter to me for further consideration. [23] With respect to the issue of costs, the mother shall have her costs of this motion which set in the sum of $600.00 payable forthwith. [24] As final comment, would encourage the parties to make every reasonable effort to negotiate and determine the appropriate recalculation of support each May, in accordance with their agreement and consent order. Alternatively, if the parties find themselves unable to perform that recalculation from year to year, the parties should consider amending their support agreement so as to avoid these costly court proceedings. J. D. L. WILSON

FIAT: The respondent mother filed a motion asking for an order quantifying child support arrears which she claims are due and owing pursuant to the order of Gunn, J. in September, 2008. She also asks that the Court determine the ongoing child support amount to be paid by the petitioner father. The Court questioned whether this application was more in the nature of a variation of the Gunn, J. order. It is clear that there has been a change since September 2008 with respect to the residency of one of the children.HELD: 1) The father's unusual 2008 taxation year has led to the parties taking very different positions as to how the father's income should be calculated. The father argues that it would be appropriate to average the father's income for 2006 to 2008. The mother argues that his income is the sum set out on line 150 of his tax return. She argues that his total income is the sum of $302,196 for the 2008 year. The father's argument is that the severance he received in 2008 should not be included in his income. It is well established that severance pay represents an acceleration of income that would have been paid over a period of months. It is also well established that income for the basis of calculating child support should be determined on the basis of severance pay plus whatever other earnings the payor may have. The severance is included as part of the father's income. 2) The capital gain which shows on the father's 2008 income tax return shall not be included in his 2008 income. The father agreed as part of the distribution of family income to assume responsibility for the capital gain on the real estate he was receiving as part of the family property division. The gain does not reflect income actually received by the father and there will be no 'year to year' capital gains. See Andersen v. Andersen (1997), 32 R.F.L. (4th) 177. 3) The father's income for 2008 is $270,300. 4) If the parties were to proceed in accordance with their own agreement and consent order, the father would be forced to pay on his inflated 2008 income. However, the mother would then be forced to pay back to the father the overpayment. As of May 2009 the father's income is the sum of $160,000. 5) The mother shall have her costs of $600.

c_2009skqb514.txt

J. INFORMATION 2075759 DATE: 1998 IN THE PROVINCIAL COURT FOR SASKATCHEWAN SASKATOON, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN and TRENT WAYNE WALKER S. Fillo For the Crown A. Kapoor For the Accused JUDGMENT RENDERED ON S.P. WHELAN, PCJ August 24,2001 CHARGES [1] Trent Wayne Walker was charged with i) impaired driving, contrary to sections 255(1) and 253(a) and ii) having consumed alcohol in a concentration exceeding 80 milligrams in 100 millilitres of blood, operating a motor vehicle, contrary to sections 253(b) and 255(1) of the Criminal Code. Count #1 was dismissed during the trial. ISSUES 1) Should the Court enter a stay of proceedings and award costs given the failure of the Crown to produce the standard alcohol solution as requested by the Defence? 2) Could mouth alcohol have invalidated the roadside screening test? 3) Did the Arresting Officer have reasonable and probable grounds to demand a breath sample? 4) Was the Accused denied his right to Counsel? 5) Was the breathalyzer test administered as soon as practicable? 6) Was there "evidence to the contrary"? [2] The Arresting Officer said that he stopped the Accused at 1:40 a.m. when he observed the Accused driving his vehicle 70 km per hour in 40 km zone in the town of Martensville. Upon coming into contact the Officer noted distinct smell of liquor and little redness in the Accused's eyes. At 1:42 a.m. roadside screening demand was made, based on the observed smell of liquor coming from the Accused. The roadside screening test was performed and the Accused failed it at 1:45 a.m. As result the Officer made demand that the Accused provide breath sample for analysis pursuant to section 254(3) of the Code. The Officer read from his "card" when making the screening demand and again when making the breath analysis demand; he again read those demands from that card when giving his evidence. With respect to the right to counsel he read: "You have the right to retain and instruct counsel without delay. You may call any lawyer you wish. Legal Aid duty counsel is available to provide you with immediate legal advice free of charge and can explain the Legal Aid plan to you. can provide you with number that you can call free of charge. Do you understand?" [3] The Accused stated that he understood after each demand was read. He was asked at the scene if he wished to contact lawyer and he said that he didn't wish to. He was asked again once they arrived at the RCMP detachment on 8th St. in Saskatoon and he once again said no. The Officer did not give the Accused the toll free Legal Aid number at which legal advice might be obtained. [4] The Officer made the demand because the Accused failed the roadside screening. As result he believed that the Accused's ability to drive motor vehicle was legally impaired by alcohol. [5] The Defence questioned why the Accused was transported to Saskatoon RCMP and not to the Martensville or Warman detachments near by, in order to provide the breath samples? The Arresting Officer advised that he preferred that someone else administer the test when he is the arresting officer and he did not go to Martensville or Warman as he has found that there is rarely anyone at either location or in any case anyone who can administer test. [6] They arrived at the Saskatoon RCMP detachment at 2:12 am. No issue was made of the delay between 2:12 and 2:34. The readings at 2:34 and 2:55 a.m. were each 100 milligrams of alcohol in 100 millilitres of blood. The Accused was served with the Certificate of Analyses at 3:12 a.m. and released. [7] This Officer received request from Defence Counsel for disclosure concerning the chemicals used in analysing the Accused's breath. The Court did not receive copy of the requesting letter. The reply, dated May 27, 1999, was filed as an Exhibit. It read in part: "Enclosed is sample test ampoule from the same lot used in the breathalyser analysis of the of the above noted person. The sample allotment number is 10254 which is the sample lot number used in the tests. The Standard Alcohol Solution (SAS) is not available, as the solution with lot number 30130 has been used and longer available. There was only two other bottles available at the time of your clients tests." [8] The Officer was asked to explain the operation of the 900A Borkenstein breathalyzer as it concerned the use of the test ampoule and the SAS. He explained that test ampoule and reference ampoule are used. Once the breath sample is engaged the colour of the light in the photo electric cell changes. This in turn alters the position of the altimeter. When readjustment is made to the light reading results. Following the first breath test the SAS is functional in telling the technician whether the test and the components of the machine are operating properly. The SAS is held in sealed container. It is then poured from bottle into an itemiser in the breathalyzer and again sealed. In time, depending on the practice of the operator the SAS is discarded. The SAS has to be used within an expiry date. [9] On this occasion the technician found that the test results were accurate and the machine was working properly. [10] The Officer advised that there was no process to track cases and when they are concluded. He advised that the remaining bottles of SAS were disposed of before Defence Counsel's request was received. The Officer indicated that he called the RCMP Crime Laboratory to attempt to obtain an SAS ampoules for lot number 30130. No steps were taken to ensure that the SAS sample ampoule used in the tests performed on the Accused was preserved pending the conclusion of the charges against this Accused. The Officer was not aware of such procedure. [11] Defence Counsel questioned the Officer about the delay in responding to his letter of December 8, 1998 until May of 1999. He apologized but did not recollect seeing the December letter until perhaps April 30, 1999. It appeared that the letter was initially directed to the Crown Prosecutor's office. [12] It is the Officer's practice to wait minutes to insure that there is no mouth alcohol before administering the roadside screening test. [13] Mary-Ellen Sharp was qualified to give expert testimony concerning the operation of the breathalyzer machine used, the test ampoules and standard alcohol solution and the elimination of alcohol by the human body. She is forensic toxicology specialist and has been employed at the RCMP Forensic Laboratory in Regina for over 18 years. She has taught the use of the breathalyzer to persons seeking to be qualified technicians for about years. She had not previously testified about the workings of the breathalyzer as she is new to this area of alcohol related work at the Lab. She obtained Pharmacy degree in 1978 and Masters of Science specializing in toxicology in 1980. In 1999, after moving to the Alcohol Unit she spent over year training almost exclusively in alcohol related matters in the Lab including the area about which she was called to testify. She has been deemed by the Lab's chief scientist to be qualified to work and testify in this area. [14] While not qualified to testify concerning the workings of the roadside screening device, she was asked in cross examination as to her qualification and testified that they advise officers to wait at least 15 minutes to allow any mouth alcohol to dissipate before administering roadside screening or breathalyzer. She believed that the policy manual states that they should wait 15 or 20 minutes. When questioned by the Crown it was clarified that this is recommended in the absence of inquiries about recent consumption. [15] Ms. Sharp explained that the SAS can be used to determine that the breathalyzer and attendant parts, ie the ampoules, are in proper working order. When approving lot of SAS the analyst tests statistically suitable sample chosen randomly from purchased lot of SAS. This sample is analysed to ascertain that the lot falls within statistically acceptable limits of reliability. Once this is done the lot can be sent out in to the field for police officers to use in administering breath tests. [16] The records at the Lab show that the Lot of the SAS used in this case, ie Lot 30310, had 2,400 bottles and the analyst selected random sample of 30 bottles for testing. The Lab routinely relies on sample of 30 to obtain verifiable statistics to approve lot. [17] Crown Counsel asked Ms. Sharp how useful it would be to test bottle of SAS taken from given Lot in determining the reliability of tests performed with another bottle of SAS from the same Lot. She explained that it would be meaningless as the reliability of the Lot has been determined by statistical analysis and testing one bottle from the Lot would not allow an analyst to draw any conclusions about the whole Lot and hence the bottle used in given breath test. [18] Ms. Sharp was asked to tell us, based on the reading of 100 mg at 2:34 a.m., what the Accused's reading would have been at 1:40 a.m., which is when he was stopped in his vehicle. She testified that the blood/alcohol concentration would have been in range of 109 to 118 mg in 100 millilitres of blood. When reading back from the reading of 100 mg at 2:55 a.m. the blood/alcohol concentration would have been in range of 112 to 125 mg%. She explained that the practice is to round down to the nearest 10 mgs, to truncate. [19] Trent Walker testified. He said that he felt that the fumes from working under motor vehicles in the shop that day may have caused his eyes to be red. The evidence concerning his eyes was not material for the Crown or Defence. [20] Mr. Walker gave an account of his activities that day. He said he worked until 4:30 or 5:00 p.m., had beer between 5:30 and 6:00 and then did some personal work on his girlfriend's truck in the shop at his place of work, finishing around 11:00 p.m. His girlfriend phoned him at about 10:00 p.m. and she asked him to bring the truck to her at the bowling alley. He arrived at Fairhaven Bowl with men from the shop between 12:30 and 12:45 a.m. As his girlfriend was still bowling, he went into the lounge where he said he drank beer. [21] Mr. Walker said that fellow, named Jim, brought beer to the shop. There were fellows there and Jim drank or beer himself. When asked about drinking only beer in the time he was at the bowling alley, he said he knew he was driving and he said he never drinks more than beer day. He said that he consumed the last of that beer in the seconds before he left the lounge. [22] He said he left for Martensville at 1:15 or 1:20 a.m. and that it took about 10 to 15 minutes to travel to Martensville where he was stopped by the police. He turned off at the merge and headed down Main St. where after about block he was met by the police. He said that the Officer did "u" turn at Central and Main and followed him. As he was about to turn into his driveway, the Officer put his lights on and he stopped. There was passenger in the vehicle, Chad. [23] He said that his girlfriend had been driving car length ahead of them. He felt that he would have been going 40 km per hour as his girlfriend who was in front of him was driving cylinder tractor and he doubted that she would be speeding and so he couldn't have been speeding. He said that the Officer said nothing to him about his speeding. [24] He recalls that the Officer phoned the Martensville Detachment and that there was no one there to administer the test. He said that the Officer's partner suggested that they go to Warman and but he said no that they would go back to the City. He said that it took 20 minutes to reach the detachment in Saskatoon. [25] He recalled being read the demands for the roadside screening and breath samples and he recalled being told of his right to remain silent but he didn't recall being told anything about lawyer until he was at the police station. He acknowledged that he may have forgotten that he was advised of his right to counsel at the scene. He denied being told that he could call legal aid lawyer or indeed being given the phone no. He said that had he been given the Legal Aid number he probably would have phoned there. [26] He acknowledged that at the detachment he was taken to room with phone and given the opportunity to contact lawyer. He said that he didn't know Mr. Kapoor's phone number; it was his Boss that knew Mr. Kapoor. He didn't tell the Officer that he wished to contact Mr. Kapoor nor did he ask for assistance in locating his phone number. He didn't attempt to locate Mr. Kapoor because he didn't know his phone number, didn't know if he lived in Melfort or Saskatoon, though he was pretty sure that it was Melfort. He said that he didn't pursue contacting Mr. Kapoor as it was a.m. [27] Dr. Richardson was qualified to give expert testimony concerning the absorption and elimination of alcohol as well as the calculation of blood/alcohol concentration and the effect of alcohol on human brain function. He heard the testimony of Trent Walker and was asked to give his opinion concerning his blood/alcohol concentration based on his weight and the amount and times at which alcohol was consumed. [28] Dr. Richardson testified that the alcohol reportedly consumed at the bowling alley would not yet be measurable as it had not yet been absorbed into the blood stream. He said that where there is alcohol in the mouth it can give falsely high reading. He said that one beer would metabolize in hour and 12 minutes so that by 2:34 the blood/alcohol concentration would be 0. [29] Dr. Richardson testified that with reading at 2:34 a.m. of 100 mg of alcohol in 100 millilitres of blood that the reading when he was stopped in his vehicle would be between 103 and 129 milligrams %, or on average 116 mg %. The symptoms exhibited with such reading would range from no symptoms to an appearance of being very intoxicated. DISCUSSION OF ISSUES Credibility [30] It is necessary to discuss credibility before address the issues raised in this trial. Before embarking upon this task reviewed the principles in R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) and R. v. McKenzie (1996) 1996 CanLII 4976 (SK CA), 141 Sask. R. 221, 106 C.C.C. (3d)1 (Sask. C.A.). was not impressed with the testimony of the Accused and reject it. There is never any one reason for rejecting the evidence of witness. can explain this conclusion by making some observations about his testimony: [31] He overstated his case in Chief. recall two examples of this. He said that he was not advised of his right to counsel at the scene but on cross examination acknowledged being advised of his right to remain silent and acknowledged that he may have been advised of his right to counsel. accepted the testimony of the Arresting Officer that he was advised of his right to counsel. [32] He testified in Chief that he was driving 40 km per hour in 40 km zone when he was stopped. When asked in Cross Examination how he knew that he was only going 40 km per hour, he responded that his girlfriend was driving cylinder tractor and he was following her so he couldn't have been speeding. [33] He had several reasons for failing to exercise his right to counsel and it would seem that he communicated none of these to the Arresting Officer. He said that Mr. Kapoor was known to his boss and he didn't know his phone number. He then said that he didn't know where he lived but he was pretty sure that Mr. Kapoor lived in Melfort. Finally he said he wasn't inclined to phone him at a.m. had no confidence in this evidence in the face of his clear statements that he did not require lawyer both at the scene and at the detachment. He did not explain why he would make these utterances, (the decline at the detachment was acknowledged), if he was considering whether he should call Mr. Kapoor. [34] He was overly emphatic about his general drinking habits in general. He stated that he never drinks more than beer in day. It is exceedingly rare that anyone can make such statement and be sure of its truth, especially given the effect of alcohol on the memory. [35] He offered no information about the ability of others in his company to observe his drinking and driving behaviour. He was with several others at the shop, others at the bowling alley, he had passenger in his vehicle that night and he met and spoke to his girlfriend. say this, acknowledging that must not shift the onus of proof to the Accused. Supportive evidence can have the effect of bringing some objectivity to the testimony of an accused. His evidence did not have an air of objectivity. [36] There was only vague explanation of the time from 11:00 p.m., when they quit work at the shop, to 12:30 or 12:45 a.m., when he arrived at the bowling alley. Presumably they were socializing and there was some drinking at the shop. [37] reject the evidence of the Accused. found the evidence of the Arresting Officer to be straightforward and reliable. 1) Should the Court enter stay of proceedings and award costs given the failure of the Crown to produce the standard alcohol solution as requested by the Defence? [38] Is it necessary that this be "live issue" or does the Defence have an absolute right to this disclosure and does it follow that failure to produce the standard alcohol solution calls for judicial stay of proceedings and costs? [39] The Defence urged me to decide this issue at the outset. The Crown urged me to hear the evidence and argued that there was no issue to determine until the Certificate of Analyses was filed and heard pertinent evidence. resolved this issue by following my usual approach which is to render decision once all the evidence is before the Court; this avoids unnecessary splitting of case. See R. DeSousa 1992 CanLII 80 (SCC), [1992] S.C.R. 944, 76 C.C.C. (3d) 124 and R. v. Martin (1991), 1991 CanLII 7340 (ON CA), 63 C.C.C. (3d) 71 (Ont. C.A.). [40] This is an application pursuant to sections and 24(1) of the Charter of Rights. The Defence has argued that the Accused's right to make full answer and defence has been infringed. The burden on such an application lays with the applicant. The question remains; once the Defence has established that it sought the SAS and it was not provided for whatever reason, has it discharged its burden or must it prove that the failure to produce the SAS solution could have a meaningful outcome on the trial? [41] have been referred to R. v. Bourget, (1987) 1987 CanLII 208 (SK CA), 35 C.C.C. (3d) 371 (Sask.C.A.), R. v. Kalafut (1988) 1988 CanLII 4920 (SK QB), 70 Sask. R. 94 (Q.B.), an excerpt of an article, "Driving Down Breathalyzer Lane: Recent Developments in Drinking and Driving Cases" by Rick Libman, (1991) 26 M.V.R. (2d) 96 at 99 to 106, R. v. Stinchcombe 1991 CanLII 45 (SCC), [1991] S.C.R. 326, 68 C.C.C. (3d) 1, R. v. Schmidt [1999] S.J. No. 408 (Provincial Court), R. v. Lefebvre [1988] A.J. No. 371, (Q.B.) and R. v. Simpson[(1995) 12 M.V.R. (3d) 104, (Ont. Court of Justice (Gen.Div.)). [42] With respect to R. v. Bourget, also reviewed the decision of the Chief Justice of the Court of Queen's Bench written at the first level of appeal and found at (1986) 1986 CanLII 3207 (SK QB), 49 Sask. R. 143, [1986]S.J. No. 451. [43] R. v. Bourget concerned the requested production of ampoules, representative of those used in analyzing the breath samples of the accused. The request was made so as to ascertain the reliability and accuracy of the machine. The Borkenstein breathalyzer used in that case was accompanied by manufacturer's certification to the effect that it could take no responsibility for the precision and accuracy of the instrument used unless "genuine breathalyzer ampoules are used". The ampoules used were not such ampoules but were produced by another manufacturer. This was not case of inability to comply but rather the refusal by the Crown to produce the requested ampoules. [44] Gerein, C.J.Q.B. stated at1986 CanLII 3207 (SK QB), [1986]S.J. No. 451 at page 5: "Most often the case against an accused person is largely proven by the viva voce evidence of witnesses each of whom the accused has the right to cross-examine to test the veracity and accuracy of their testimony. In most instances where an accused is charged pursuant to s. 236 of the Criminal Code there is minimal viva voce evidence. The essence of the Crown's case is the results of the analyses of the breath samples of the accused, which results are obtained from breathalyzer machine. It is obvious that such machine cannot be subjected to cross-examination and that its veracity will never be in question. However, it does not follow that its accuracy is immune from attack. An integral component of any analysis is the solution contained in the ampoules. If the solution is deficient it will produce an inaccurate reading. The only way in which the defence can satisfy itself as to the suitability of the solution is to obtain comparable ampoules and have them independently analyzed. It may well be that such testing will confirm that the solution was suitable and that will be the end of the matter. However absent an opportunity to conduct such testing the defence cannot be certain of the suitability of the solution and attendant accuracy of the machine. Clearly, if ampoules are not provided the defence is precluded from learning of any deficiency in the solution. Thus, it is only by having access to the ampoules that the accused can be assured an opportunity to make full answer and defence." [45] At page he addressed whether the ampoules should be routinely produced at the request of the defence: "It might be suggested that the ampoules should be produced only upon the accused establishing at trial some basis to question the suitability of the solution. This was the procedure which counsel adopted in Re Potma and The Queen and R. v. Scott. reject such an approach. The suitability of the solution is relevant to the main issue. The reason for seeking the ampoules is to test the contents of same. It is this very testing which may produce the basis for questioning the suitability of the solution and the consequent analysis. To require the accused to demonstrate the unsuitability of the solution or even the possibility of same prior to providing samples of the solution is akin to putting the cart before the horse. Furthermore, as earlier stated, such procedure may result in no ampoules being available. more desirable approach is that an accused must seek production with reasonable dispatch and this makes sense only if production is to be made upon receipt of the request. In the circumstances herein, conclude that the failure of the Crown to provide representative ampoules to the accused constituted violation of s. of The Charter of Rights." [46] The Saskatchewan Court of Appeal in R. v. Bourget, supra, referred to the comments of Gerein, J. at length and stated at page 376: "And finally the sincerity of the defence request is not in issue. The request was made in timely fashion, not for purposes of delay and with genuine desire to have the appropriate tests conducted. The defence had available and called as an expert at trial .Accordingly, the issue of accuracy of machine using "Analex" ampoules was live issue throughout the trial. In light of the manufacturer's certification of the instrument, counsel was not merely "fishing" for information." And on page 377: "I now turn to consideration of the primary issue raised in this appeal. As starting point, refer to R. v. Burr and Burr (1985), 1985 CanLII 2637 (SK CA), 43 Sask. R. 183 at pp. 1990-1, where this court emphasized the Crown's duty to make timely disclosure to the defence of all evidence supporting innocence or mitigating the offence. Although we have elected to employ an adversary system of criminal justice, the Crown plays an essential role in the truth-finding function of our system. The need to develop all the relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments or verdicts were to be fashioned on partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence it must depend upon full disclosure of all the facts, within the framework of the rules of evidence. Accordingly, our approach with respect to the production and discovery of objects or material for independent testing must comport with that fundamental notion. ." At page 380 Tallis stated the general principles: "In my opinion, s. of the Charter gives the court broad power to promote the proper administration of criminal justice by ordering disclosure of material and objects for the purpose of independent testing. Section is no longer limited to the notion of procedural fairness in court and encompasses the whole process including discovery and disclosure. If our system of criminal justice is to be marked by search for truth, then disclosure and discovery of relevant materials, rather than suppression, should be the starting point." [47] Crown counsel has argued that the law in Saskatchewan is that in order that the court require production, that it be concerned with "live issue". Having read the Bourget decisions at both levels of court, it is clear to me that Gerein, J. placed no such restriction on his decision, albeit the facts concerned what the Court of Appeal described as "live issue". Further it is not clear from the decision of Tallis, J. whether he was endorsing the "live issue" approach or the more general approach of disclosure. Certainly he referred to production of relevant materials. will leave aside for the moment whether find that was concerned with "live issue" in the case before me. [48] R. v. Kalafut (1988) 1988 CanLII 4920 (SK QB), 70 Sask. R. 94 (Q.B.) followed very soon after the Bourget decision. In that case the accused requested test ampoule of the standard alcohol solution used to test the breathalyzer machine and test ampoule used in the machine to test the alcohol content of the breath sample. The standard alcohol solution for the lot number involved in the testing of the accused's breath was not available. MacIntyre J. commented at paragraph [10]: "I was advised that the Crown now retains sample ampoules after plea of not guilty until after the trial has been concluded so that the present situation should not occur again." He concurred with the trial judge, Fenwick, J. that the respondent's Charter rights had been breached and that the only appropriate remedy was stay of proceedings. [49] R. v. Schmidt [1999] S.J. No. 408 (Provincial Court) is decision of one of my Saskatoon colleagues, Goldstein, J. He was concerned with an application for the production of maintenance records for the roadside and breathalyzer machines utilized in conducting tests on an accused. He considered R. v. Bourget among other decisions and held: "Applying these principles to the case at hand, can it be reasonably concluded that tests or calibrations, which would show whether the breathalyzer was properly in repair, are clearly irrelevant as to accuracy of its readings,. ." [50] As read the facts in R. v. Kalafut, was unable to find anything which would distinguish that decision from the case before me. Having regard to the Saskatchewan decisions in Bourget and Kalafut would, ordinarily, based on the principle of stare decisis, not pursue this issue further. In recent decision of one of my colleagues, R. v. Shuparski [2001] S.J. No. 220 (Provincial Court) my colleague, Snell, J. discussed stare decisis and found it helpful to read and provide an excerpt from her judgment, beginning at paragraph 23: "(ii) Stare Decisis [para23] The purpose of stare decisis is to promote certainty in the law. It appears that am not bound to follow the obiter rulings of the Court of Queen's Bench. Only the obiter pronounced by the Supreme Court of Canada is binding on lower court (see Sellars v. The Queen (1980) 52 C.C.C. (2d) 345 (S.C.C.)). However, one should apply the rules of stare decisis in such way as to promote the purpose for the rule. note that Wimmer J. held in R. v. Wolverine, [1987] S.J. No. 113 (Q.B.) that although decision of his brother judge was not binding on him, he would follow it because it contributed to the principle of certainty in the He stated: It is true that the doctrine of stare decisis does not absolutely bind judge of first instance to follow prior decision of another judge of the same court, but failure to do so is disservice to litigants, lawyers and inferior courts who are entitled to see the law as reasonably settled and certain. It is for courts of appeal, not individual judges of equal jurisdiction, to correct judicial errors. [para24] The following description of the meaning and purpose of stare decisis appears in R.v. Koziolek, [1999] O.J. No. 657 (Ont.Gen.Div.) at page 12: The phrase stare decisis is an abbreviation from the Latin phrase stare decisis et non quieta movere which may be translated as "to stand by decisions and not to disturb settled matters". The "rule" as it is often described, has been commonly understood in modern terms to mean that every court is bound to follow any case decided by court above it in the hierarchy. However, as the entire phrase itself suggests, the "doctrine of stare decisis also requires that cases be decided the same way when their material facts are the same": see Glanville Williams, Learning the Law (9th ed.), 1973." [51] However experienced some difficulty leaving the matter with my review of the Saskatchewan decisions alone, given the nature of the expert evidence presented to me. was really puzzled by the evidence of the forensic expert which was that it would be meaningless to test one ampoule of SAS taken from the same Lot as the SAS used to test the accuracy of the machine in this case. She spoke of the statistical analysis employed to ensure that Lot meets acceptable limits of reliability and accuracy. In her view testing one ampoule would tell you nothing about the Lot from statistical point of view and the question remains; would it tell the court anything about the SAS used in the test upon particular accused. [52] It would also seem that if an accused wants to test the SAS used in an actual case, that it is only reliable for limited duration of up to days and therefore, counsel should act very promptly to obtain this ampoule after test. Indeed it would seem ideal to obtain both the test and reference ampoules should the Defence wish to challenge the accuracy of the test. [53] was provided with no evidence from the Defence to explain how the SAS might be used on practical level to question the accuracy of the test performed on this accused. could not help but wonder; had the SAS been produced, what would the Defence have done with it? Let me say that appreciate the argument that it is necessary to have the right to the ampoules without the necessity of court application if the ampoules are to obtained before destruction. My concern is with the science involved in ascertaining the accuracy of breathalyzer tests and how it assists the finding of truth and the conduct of fair trial while guaranteeing the accused's rights. read the Saskatchewan decisions and those in other jurisdictions for scientific evidence of the kind that received. Indeed would have preferred more thorough canvassing of these issues in the trial before me. [54] As result of this evidence, am, like my colleague, Snell, J. in Shuparski, supra, faced with the possibility that my decision, no matter how decide may be wrong. Like her, will follow those decisions which regard as binding on me in Queen's Bench and the Court of Appeal in Bourget and Kalafut and will accept the decision of my colleague Fenwick, J. in Kalafut. remain uncertain how broadly the Court of Appeal decision in Bourget was intended to be read. have reviewed the facts and canvassed all of the issues raised before me so that should be found to be in error concerning the production of the SAS, an appeal court will have the benefit of my findings on all issues presented. [55] Before concluding on this point will canvass some of the decisions available in other jurisdictions. There has not been lot of activity recently in this area of the law. expect that it is because it had heretofore been settled in some jurisdictions and that it has been resolved on practical level either by the routine storage of the solutions used, as suggested in R. v. Kalafut or by limitations on the ability to test the solutions once they are produced. The evidence of the Arresting Officer in this case was that he did not routinely store the solutions. He was not aware of any system to store solutions until after charge had been concluded. Certainly the RCMP forensic lab that certifies the SAS did not retain sample ampoule from the same lot in this case. [56] In R. v. Dunn (1990), 26 M.V.R. (2d) 34 (Ont. Gen.Div.) the Court held at paragraph 38: "[para38] In my opinion, the absence of the "live issue" is sufficient to dispose of this appeal. There is an absence of any evidence to show the relevance of, or the significance of, the requested items. It is not unfair to require an accused to give some minimal indication as to how or why the requested material may be relevant, having regard to the standards set out in the Criminal Code for the testing of breath samples and for the admission into evidence of test results. The respondent has not made any threshold case or adduced any evidence indicating his Charter rights have been denied. The fact that the request was timely, and made with reference to number of items, does not alter this conclusion." [57] In R. v. Balogh (1990), 22 M.V.R. (2d) 28 (Ont. Dist. Ct.) the request was for the actual ampoules used in the test. Uncontradicted evidence led at trial indicated that there was no way to test the accuracy of an ampoule after its use. [58] In R. v. Mayer (1989), 16 M.V.R. (2d) 174 (B.C. Co. Ct.) the Court held that before an accused can claim that the non-production of evidence violates his Charter rights, he must show that the independent testing of it may advance his defence. [59] In Regina v. Eagles, (1989) 1989 CanLII 205 (NS CA), 47 C.C.C. (3d) 129 (N.S.C.A.) the Court considered R. v. Bourget (Sask.C.A.) and distinguished it on the basis that it concerned "live issue". The Court queried whether in the absence of live issue our Court of Appeal would have decided the case in the same way. The Court stated at page 3: "In this case, there was no factual foundation or other basis shown indicating that the production and examination of the ampoule would have any meaningful capacity to advance the defence. While defence counsel is not required to establish that an examination of the ampoule would show that it was defective, there must be some basis for the request for the production of the ampoule that lends an air of reality to the request. Otherwise the request is nothing more than fishing expedition. Without something more than mere speculation, production of the ampoule should not be made or ordered. In this case the accused's right to make full answer and defence as guaranteed by s. of the Charter had not been infringed by the non-production of the representative ampoule. The accused had the burden of showing on balance of probabilities that such right had been violated and this burden of proof was not discharged simply by the accused showing that the Crown had refused to produce the ampoule. Accordingly the trial judge erred in excluding evidence of the certificate of the technician as to the results of the analysis of the accused's breath sample. At page 22: If request for production does not have to pass reasonableness test then in every breathalyzer case, the Crown would automatically, if asked, have to provide for inspection any and all [page137] parts of the breathalyzer machine that had been used and indeed perhaps the complete machine itself. All devices for measuring or ascertaining facts or data would be available upon request such as radars, computers, thermometers, speedometers, etc. There also arises the problem of testing the testing equipment. [60] R. v. Hodgson (1990) 1990 CanLII 10967 (BC CA), 57 C.C.C. (3d) 278, [1990] B.C.J. No. 1471 (B.C.C.A.) distinguished R. v. Bourget on its facts, finding that it was concerned with "live issue". At page the Court stated: "No evidence was given at the trial by the technician, the analyst, or by the appellant, but the defence had available an expert witness who was qualified to testify if sample of the alcohol standard was produced. The Crown made the following admissions: that if the defense had been provided representative sample of the standard alcohol solution lot No. 110 then the defense expert witness would be able to determine whether it was suitable solution for use with the breathalyzer and further whether or not the breathalyzer would have been properly used and operating properly on the date in question." The Court concluded that there was no "live issue" and no breach of s. of the Charter. [61] In R. v. Oakman, [1993] M.J. No. 236 (Man. Q.B.) after careful review of the authorities the Court stated at page 28: "If the Crown is to be allowed to rely upon the results of breathalyzer test to convince court to convict person accused of driving motor vehicle while the volume of alcohol in that person's blood exceeded 80 milligrams percent, the accused must certainly be able to fully question and challenge the results of the test. If the questioning by the accused of the test results requires independent scientific testing of sample of the test ampoule or of the standard alcohol solution, the Crown must provide such sample(s) upon request. In order to be able to provide such sample(s), the same must be kept available until disposition of the charge has occurred. think the appellant's request here was both timely and reasonable. The evidence makes it clear the appellant here was not "engaged in discovery based on pure speculation" as in Hodgson, supra. Nor can it be said, in my view, that the appellant here was involved in "fishing expedition" as was found to be the case in Eagles, supra, and Hodgson, supra. In the appeal before me, the appellant's purpose in wanting to have independent tests conducted was to determine the suitability of the Analex ampoule used in the breathalyzer. The concerns expressed in Bourget, supra, respecting the manufacturer's certificate accompanying the breathalyzer as it relates to Analex ampoules, do not exist here. Be that as it may, there is still live issue as to the suitability of the ampoules in my opinion. That issue stems from the fact that in order to certify the ampoule lots received in Manitoba, three separate individuals at the R.C.M.P. Forensic Laboratory at Winnipeg conduct random sample analyses of ampoules in the lots before the same are distributed to various detachments for use. If that kind of testing must be conducted by employees or members of the R.C.M.P. before ampoules from any given lot are utilized, then surely it is reasonable for an accused person to request, and be given, the opportunity to have independent testing conducted. It is just not good enough to say that the accused can cross-examine experts in the employ of law enforcement agencies. As the learned trial judge said at p. of her reasons for decision, cross-examination of experts called by the Crown "results in more limited and restricted form of questioning the accuracy of the Crown's evidence." To enable an accused person to make full answer and defence, full disclosure of all relevant evidence must be made by the Crown. might add, parenthetically, that in my view, the disclosure ought to be unsolicited. Failure by the Crown to disclose, whether advertent or inadvertent, will, in my view, result in an infringement upon the rights of the accused as guaranteed under s. of the Charter." [62] I hold that the Accused\'s right to make full answer and defence has been infringed by the failure of the Crown to produce a sample of the SAS solution used in this case. In light of the Bourget and Kalafut decisions, the Crown has had ample opportunity to establish system for routinely saving the solution until after case has been concluded. S. of the Charter of Rights has been infringed. Given the decisions referred to I find that it would bring the administration of justice into disrepute were the Certificate of Analyses admitted in evidence given that the Defence has not had the opportunity for full answer and defence. The Defence sought a stay of proceedings pursuant to s. 24(1) of the Charter. I believe it more appropriate to exclude the Certificate of Analyses. In Bourget Gerein, J. found that to be the appropriate route. In Kalafut stay was granted. No argument was presented on this point. The Certificate of Analysis was made full exhibit without qualification. However the nature of the application was clear from the outset. exercise my discretion to grant the remedy pursuant to s. 24(2) of the Charter. The Certificate of Analyses will be excluded. [63] Despite the arguments of Defence Counsel, did not regard the request for production of the SAS solution to be "live issue". No evidence was presented which would indicate that production and testing of the SAS would affect the outcome of the trial on the merits. In argument, Defence Counsel argued that as the readings were 100 mg% this in and of itself made it "live issue". There was no evidence to support this argument and it does not necessarily follow. [64] With respect to the issue of costs, Defence Counsel provided me with the decision of R. v. Boychuk, Feb 21, 1995, Provincial Court of Saskatchewan, Wakaw, Saskatchewan, Diehl, PCJ. Defence has argued that the Crown should not have proceeded given that the state of the law was clear concerning disclosure of the SAS and that there was clearly no evidence to support an impaired driving conviction. do not regard the Boychuk decision to be relevant. The only thing that this decision has in common with this case is the names of Counsel. am not interested in any history between them and would have preferred that Defence Counsel had not filed this decision. have no evidence concerning the costs incurred by the Accused. [65] The onus of proof in this Charter application lay with the applicant. Ordinarily, as part of that onus the applicant would have been required to provide some evidence before the Crown would be called upon to respond to the application. The Defence would no doubt say that it has met that burden by making the request for the SAS and establishing that it has not been provided. This is consistent with the Bourget and Kalafut decisions, as discussed. [66] The SAS was requested within reasonable period of time. In any event, having regard to the comment of McIntrye J. in Kalafut, one would have thought that the Crown was routinely storing the SAS until after charge had been disposed of bay way of conviction or otherwise. The evidence of the Arresting Officer in this trial was that there is no routine method of storing ampoules after they are used for testing. Certainly from all of the evidence before me it would appear that if there was at one time storage system it has been abandoned. It is now not clear to me that practically speaking there is any merit to storing the SAS after it has been opened or indeed storing sample SAS ampoule from each lot used in the province. Regrettably the expert evidence presented by the Crown did not fully canvass this area. There was no evidence from the Defence as to the use that may be made of the SAS. [67] Costs are rarely awarded in criminal proceedings. Given the evidence presented concerning the usefulness of testing representative SAS ampoule had it been produced am not persuaded that costs should be awarded. 2) Could mouth alcohol have invalidated the validity of the roadside screening test? [68] As understand the Defence argument; the roadside screening device was administered within 15 minutes of the last drink of the Accused and therefore there is the risk that the presence of alcohol in the mouth may have invalidated the test. [69] The applicable sections of the Criminal Code are 254(2) (3). [70] The Accused said that he consumed the last of the one beer that he drank in seconds before he left the bowling alley. He stated that he left the bowling alley at 1:25 or 1:20. He also said that it took him 10 to 15 minutes to drive from Fairhaven Bowl in Saskatoon to Martensville. He was stopped at 1:40 and the roadside screening was administered between 1:42 and 1:45 a.m. There is no evidence that the Arresting Officer was advised that the Accused had been drinking within 15 minutes before administering the roadside screening. [71] If he left the bowling alley at 1:25 a.m. and the test was administered at 1:42 a.m., the test was administered at about 17 minutes after his last drink. He has said that it took 10 to 15 minutes to make the drive. Allowing some time for his departure from the bowling alley, and allowing as well for the to minutes that elapsed after he was stopped and before the test was administered it is more than likely, on his account that at least 15 minutes elapsed between his last drink and the roadside screening. [72] have already stated that reject the Accused's testimony, having found that it was not credible. There is nothing in the evidence available on this issue which causes me to reconsider this assessment or to have a reasonable doubt as to the time that elapsed or that there may have been alcohol in his mouth which may have invalidated the roadside screening. [73] have been referred to R. v. Bernshaw 1995 CanLII 150 (SCC), [1995] S.C.R. 254. Based on the evidence and my understanding of this decision, both the subjective and objective tests were met. In other words the evidence does nothing to detract from the appropriateness of the demand for roadside screening. In this case the Officer had no evidence that the Accused had recently consumed alcohol such that it may affect the validity of the test and hence there was nothing to affect his belief. This is the subjective test. As have rejected the evidence of the Accused there is no evidence to affect the objective test so as to vitiate the validity of the roadside screening. [74] In Bernshaw, as here, the arresting officer had no other basis, beyond the roadside screening result, upon which to support the demand for breath sample. In Bernshaw, unlike this decision, there was no evidence as to the timing of the last drink. Like Bernshaw, in this case the arresting officer made no inquiry about the timing of the last drink. Sopinka, J. wrote for the majority: "[para48] The existence of reasonable and probable grounds entails both an objective and subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief: [para51] Where there is evidence that the police officer knew that the suspect had recently consumed alcohol and expert evidence shows that the subsequent screening test would be unreliable due to the presence of alcohol in the mouth, it cannot be decreed, as matter of law, that both the subjective and objective tests have been satisfied. To so hold would fly in the face of the evidence. [para70] In the situation where the officer knows that suspect has just recently consumed alcohol, proper sample can only be attained by waiting at least 15 minutes. Thus, the wording of the provision adds support to the argument that "forthwith" must be given flexible interpretation. [para71] This conclusion is also supported by two recent cases from the Ontario Court of Appeal. In R. v. Pierman; R. v. Dewald (1994), 1994 CanLII 1139 (ON CA), 19 O.R. (3d) 704, the court considered whether police officers are entitled to wait 15 minutes prior to taking breath sample under s. 254(2) of the Code in order to ensure proper functioning of the machine. After reviewing the jurisprudence, Arbour J.A. stated that whether or not one can delay 15 minutes cannot be determined in the abstract. If the police could never wait 15 minutes, then the officer would be faced with the choice of disregarding the "fail" result due to the suspicion of its unreliability, or taking the suspect for breathalyzer test and overlooking the concern that the screening result may have been falsely high. On the other hand, Arbour J.A. noted that if the officer is entitled to wait 15 minutes before administering the test, this unduly expands the detention without access to counsel. Arbour J.A. concluded as follows at p. 711: In my view, police officer cannot delay the taking of breath sample, when acting pursuant to s. 254(2) of the Criminal Code, unless he or she is of the opinion that breath sample provided immediately will not allow for proper analysis of the breath to be made by an approved screening device. The officer is not required to take sample that she or he believes is not suitable for proper analysis. The expression "proper analysis" incorporates an element of accuracy.... If there are facts which cause the officer to form the opinion that short delay is required in order to obtain an accurate result, think that the officer is acting within the scope of the section in delaying the taking of the breath sample. [para72] Arbour J.A. held that the police can only detain suspect for an extra 15 minutes where there is some factual basis upon which to suspect that the screening device would yield an inaccurate result. [para73] adopt the flexible approach taken by Arbour J.A. [para81] It was suggested by the respondent that prior to demanding that suspect submit breath sample for the screening test, the police officer ought to inquire when the suspect last consumed alcohol in order to ensure an accurate test. However, in my view, there is no duty on the police to make any such inquiry. suspect is under no obligation to answer such question and thus it would be improper to impose such duty on the police. That is not to say that the suspect may not volunteer such information, either spontaneously or in response to query of the police. In such case, where the officer is told that the detainee has consumed liquor within the last 15 minutes, or where other reasons exist for the officer to believe that alcohol was recently present in the mouth of the suspect due to regurgitation, the officer may wait an appropriate period of time prior to administering the screening device. However, the police are not required to ascertain such information by posing the question to the suspect prior to administering the screening device test." [75] The arresting officer who has no reason to believe that an Accused has consumed alcohol in the last 15 minutes may administer the roadside screening test without delay but to do so carries with it certain risk that there may subsequently be evidence of consumption which will invalidate the results. This would affect the objective element of the test. Further the officer has no duty to routinely wait 15 minutes before administering the roadside screening nor to ask the accused whether or not alcohol has been consumed in the preceding 15 minutes. However if there are circumstances which suggest that the officer should have waited or inquired about alcohol consumption this may affect the reasonableness of the officer's belief; this is the subjective test. [76] This argument by Defence fails. 3) Did the Arresting Officer have reasonable and probable grounds to demand breath sample? [77] As understand it the Defence argued that the Officer did not have reasonable and probable grounds because the roadside screening could not be relied upon and there was nothing in the Accused's driving which would otherwise support belief that the Accused's driving was impaired by alcohol. It matters not that there was no other indicia of impairment as have found that the Officer was entitled to rely on the roadside screening and there is no evidence on an objective basis which would invalidate the test; in that event no other indicia of impairment is required. [78] The Defence, it would seem has also argued that the Accused was not speeding and therefore the Officer had no reason to stop his vehicle. With this disagree; have rejected the evidence of the Accused and accept the evidence of the Crown. find that the Accused was, as the Officer stated, driving in excess of the posted speed limit of 40 km per hour, in the range of 70 km per hour. It is not necessary that the Crown prove that the Accused was speeding. It is sufficient if the Officer believed the Accused to be speeding and that belief was reasonable. There was nothing about the Accused's evidence, even if accepted which would support the Defence submission that the speedometer of the Accused's or the Officer's vehicles need to be checked to support the Officer's evidence. He was acting in the lawful execution of his duty when he stopped the Accused's vehicle. While executing his duty he detected an odour of alcohol on his breath and that reasonably gave rise to the demand for roadside screening. 4) Was the Accused denied his right to Counsel? [79] The Defence has advanced two arguments: i) the Accused should have been given the number for legal aid and that the failure to do so constitutes violation of his Charter Right to Counsel. ii) there was not an unequivocal waiver of the right to counsel, either private or legal aid. [80] was referred to R. v. Bartle (1994) 1994 CanLII 64 (SCC), 33 C.R. (4th)1, (S.C.C.), R. v. Pozniak, (1994) 1994 CanLII 66 (SCC), 92 C.C.C. (3d) 472 (S.C.C.), R. v. Wingerter (1998) 1998 CanLII 13902 (SK QB), 174 Sask. R. 48, (Sask. Q.B.) and R. v. Dubois, (1990) 1990 CanLII 3298 (QC CA), 54 C.C.C. (3d) 166 (Que. C.A.). [81] The Dubois decision has no bearing on the case before me. There was no evidence of haste in administering the test nor was there evidence that the Accused did not understand his rights. This Accused was advised of his right to counsel without delay. [82] R. v. Bartle held that the detainee must be told right away that he or she will be provided with toll-free phone number should he or she wish to contact legal aid lawyer. In my respectful view it is not necessary nor particularly helpful to rattle off the 1-800 number in the recitation of the right to counsel. At paragraph 37 Lamer C.J.C. stated: "The 1-800number, or at least the existence of toll-free telephone number, should have been conveyed to the appellant upon his arrest at the roadside even thought there were no telephones available. [83] Mr. Justice Allbright discussed Bartle and Pozniak in Wingerter and he concluded at paragraph 23: "[23] However, if the accused is arrested outside of normal business hours, then the informational component of s. 10(b) is accurately set out in R. v. Bartle, supra, and R. v. Pozniak, supra, and the accused must be informed of the existence of toll-free number and of the availability of duty counsel." [84] have reviewed the right to counsel provided to this Accused and find that it complied with Bartle. The informational component of the right to counsel was satisfied. [85] There is no evidence that the Accused misunderstood his right to counsel. There is no evidence that he was not given sufficient opportunity to contact counsel. He was twice asked if he wished to contact lawyer. Twice he declined. This was clear and unequivocal waiver. He at no time advised the Officer that he was considering calling Mr. Kapoor or any lawyer. He gave no indication that he was concerned about calling lawyer at that time of night. The Accused must take some action to trigger response by the police. Absent special circumstances, the police cannot be expected to draw information out of the Accused. [86] am not persuaded that the Accused's right to counsel was in any way infringed. 5) Was the breathalyzer test administered as soon as practicable? [87] Essentially the argument presented by Defence counsel was that the Officer should have proceeded to the Martensville or Warman detachments and that he unnecessarily wasted 20 minutes by transporting the Accused to the RCMP detachment in Saskatoon. No issue was taken with other portions of time that elapsed from the failure of the roadside screening to the time of the breathalyzer tests. In any examination of this issue, however, the entire time frame which elapsed from the demand to the time the test is administered must be considered. [88] have considered the requirement that tests be taken as soon as practicable, most recently in my decision of R. v. Besplug [2000] S.J. No. 153. Once again have reviewed the decisions of R. v. McCoy (1990) 1990 CanLII 7484 (SK QB), 86 Sask. R. 204 (Q.B.), decision of Mr. Justice Gerein, and R. v. Carter (1981) 1981 CanLII 2063 (SK CA), 59 C.C.C. (2d) 450, (Sask.C.A.) and R. v. Tarr [1998] S.J. No. 433, (Sask. C.A.). In particular note the comments in R. v. Carter about the role of the trial judge when assessing the reasonableness of the delay, at page 453: To do so he need not take judicial notice of particular matters, he need only apply reason and common sense derived from his experience. There is no need to explain every incident which occurred from the time the offence is alleged to have been committed until the samples were taken unless the trial Judge on the evidence before him, is not satisfied the samples were taken as soon as practicable." [89] The evidence of the Accused was that there was no one available at the Martensville detachment. The Officer was hoping to find breathalyzer operator who could administer the test as he preferred not to administer it himself as he was the arresting officer. The Accused failed the roadside screening at 1:45 a.m. They arrived at the Saskatoon RCMP detachment at 2:12 a.m. The Arresting Officer ultimately administered the breathalyzer himself. There was no evidence in Chief that the Officer made any inquiries at the Martensville, Warman or Saskatoon detachment. There was no evidence about the proximity of the Warman detachment. It seems reasonable to assume that unless someone was at the detachment, the officers would be unable to access breathalyzer machine at that detachment. The Accused said that the Officer phoned the Martensville detachment to be advised that there was no one there. According to the Accused, the Officer's partner reportedly suggested that they go to Warman but that he decided that they would go to Saskatoon. [90] On the basis of the foregoing, am asked to conclude that it was not reasonable to drive into Saskatoon without at least phoning the Warman detachment to see if there was anyone available. As well must decide in this context whether the time delay from 1:45 to 2:12 was reasonable on the face of it and if not reasonable, was accounted for or adequately explained. [91] The Accused said that the drive from the Fairhaven Bowl to Martensville was 10 to 15 minutes. Presumably the drive from to Martensville to the RCMP detachment took about the same length of time. [92] There is too much speculation called for in order for me to conclude that the Officer should have pursued the possibility of going to Warman. don't know the distance to get there. don't know precisely how long the drive to the Saskatoon detachment took. The Arresting Officer said that he typically finds that there is no one available at those detachments and accept that as reason enough not to consider attending there given the proximity to Saskatoon. There may have been other difficulties associated with going to the Warman detachment which were known only to the Officer. In any event I'm told they tried the closest detachment and found no one there. It is not unreasonable to think that there may not be anyone available at the Warman detachment or that they might encounter other difficulties at that time of night. Had the delay been more significant it might be more important to question the judgment of the Officer to return to the Saskatoon detachment. [93] Applying common sense to the situation, find that there would have been some delay at the scene after the road side screening device was administered before they left for the detachment. The Arresting Officer had yet to make formal demand for breath tests and advise the Accused of his right to counsel. There was likely some discussion surrounding the Accused's vehicle, the convenience of the Accused's passenger and the decision to call Warman detachment and proceed to Saskatoon. to 10 minute delay at the scene would not be unreasonable. This together with 15 minutes to drive into Saskatoon and 25 minutes is accounted for.On the face of it the delay of 27 minutes does not seem unreasonable. Accordingly, am not satisfied that the samples were not taken as soon as practicable. 6) Was there "evidence to the contrary"? [94] have directed my mind to s. 258.(1)(c) (d.1) of the Criminal Code. Were to accept the evidence of the Accused, the expert testimony of Dr. Richardson provided the technical evidence which would establish evidence to the contrary that at the time the offence was alleged to have been committed, the concentration did not exceed 80 milligrams of alcohol in one hundred millilitres of blood. This expert evidence however rests upon the testimony of the Accused which have rejected. [95] have reviewed R. v. Gibson (1992) 1992 CanLII 2750 (SK CA), 72 C.C.C. (3d) 28, decision of the Saskatchewan Court of Appeal, particularly in light of its caution with respect to borderline cases. As have rejected the testimony of the Accused, have no evidence which would tend to show that he was within the permitted limit and thus rebut the presumption. [96] Accordingly find that there was no "evidence to the contrary". The statutory presumption continues to apply. [97] When arriving at my findings of fact and throughout the discussion of the issues, have been cognizant of the burden of proof and have reviewed the decision of R. v. Lifchus 1997 CanLII 319 (SCC), [1997] S.C.R. 320 concerning reasonable doubt. [98] In light of my decision concerning issue a., I find the Accused not guilty of Count #2. Count #1 was previously dismissed. [99] Had not felt compelled to rule in favour of the Accused on issue a., would have found that the Crown had otherwise proven all of the essential elements of count beyond reasonable doubt and found him guilty of count #2. Dated at Saskatoon, Saskatchewan this 24th day of August, 2001. S. P. Whelan, PCJ

The accused was charged with impaired driving (Criminal Code ss.255(1) and 253(a)) and with operating a motor vehicle while having a blood alcohol concentration exceeding .08 (Criminal Code ss.253(b) and 255(1)). Issues included whether the Court should enter a stay of proceedings and award costs, given the failure of the Crown to produce a standard alcohol solution (SAS); could mouth alcohol have invalidated the roadside screening test; did the arresting officer have reasonable and probable grounds to demand a breath sample; was the accused denied his right to counsel; was the breathalyzer test administered as soon as practicable; was there evidence to the contrary? HELD: The accused was found not guilty on count #2 (exceeding .08). Count #1 (impaired driving) was dismissed during the trial. 1)The court was cognizant of the burden of proof and had reviewed the decision of R. v. Lifchus concerning reasonable doubt. 2)The accused's testimony was rejected as not being credible. 3)The burden lies with the applicant on an application pursuant to ss.7 and 24(1) of the Charter in which the defence alleges the accused's right to make full answer and defence has been infringed. The question remained whether once the defence established it sought the SAS but it was not provided for whatever reason, had it discharged its burden or must it prove the failure to produce the SAS solution could have a meaningful outcome on the trial. 4)The accused's s.7 Charter right to make full answer and defence was infringed by the failure of the Crown to produce a sample of the SAS solution in this case. In light of the Bourget and Kalafut decisions, the Crown has had ample opportunity to establish a system for routinely saving the solution until after a case has been concluded. It would bring the administration of justice into disrepute were the Certificate of Analysis admitted into evidence. It was more appropriate to exclude the Certificate of Analysis than to grant a stay of proceedings. 5)Costs are rarely awarded in criminal proceedings. Given the evidence presented concerning the usefulness of testing a representative SAS ampule had it been produced, the court was not persuaded costs should be awarded. 6)There was no evidence that created a reasonable doubt as to the time that elapsed or that there may have been mouth alcohol which may have invalidated the roadside screening test. Both the subjective and objective tests were met. The arresting officer, who has no reason to believe an accused has consumed alcohol in the last 15 minutes, may administer the roadside screening test without delay, but to do so carries with it a certain risk that there may be subsequently evidence which will invalidate the results (affecting the objective element of the test). Further, the officer has no duty to routinely wait 15 minutes before administering the test nor to ask the accused whether or not alcohol has been consumed in the preceding 15 minutes. However, if there are circumstances which suggest the officer should have waited or inquired about alcohol consumption, this may affect the reasonableness of the officer's belief (the subjective test). 7)There was nothing in the evidence to support the submission that the speedometers need to be checked to support the officer's evidence. The officer was acting in the lawful execution of his duty in stopping the accused's vehicle. While doing so he detected an odour of alcohol on the accused's breath which gave rise to the demand for a roadside screening. 8)The informational component of the right to counsel was satisfied. There was no evidence the accused misunderstood his right nor that he was not given sufficient opportunity to contact counsel. He declined twice, giving a clear and unequivocal waiver. Absent special circumstance, the police cannot be expected to draw information out of the accused. 9)The samples were taken as soon as practicable. It was accepted that there was typically no one available at the detachment in the small community and was sufficient reason to not consider attending there given the proximity of the city. The officer tried the closest detachment but found no one there. It may have been more important to question the judgment of the officer to return to the Saskatoon detachment if the delay had been more significant. On the face of it, the delay of 27 minutes did not seem unreasonable. 10)The statutory presumption applied. There was no evidence to the contrary as the accused's evidence was rejected. The court reviewed R. v. Gibson and considered s.258(1)(c) and (d.1) of the Criminal Code.

6_2001canlii365.txt

J. Date: 20020221 Docket: CA 172264 NOVA SCOTIA COURT OF APPEAL [Cite as: MacLean v. MacDonald, 2002 NSCA 30] Cromwell, Hallett and Hamilton, JJ.A. BETWEEN: ANN MacLEAN, in her own right and under the Fatal Injuries Act in respect of the death of Paul Levy, deceased and DAVID LEVY, LEONARD LEVY, and MICHAEL LEVY and DOUGLAS E. MacDONALD Respondent REASONS FOR JUDGMENT Counsel: M. Shaun O’Leary and James D. MacNeil for the appellants David Farrar and Christa M. Hellstrom for the respondent Appeal Heard: November 30, 2001 Judgment Delivered: February 21, 2002 THE COURT: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Hallett and Hamilton, JJ.A. concurring. CROMWELL, J.A.: I. Introduction: [1] Where person is killed due to the fault of another, the person’s estate may sue the wrongdoer for certain damages which have resulted in “an actual pecuniary loss to the estate.” The main question to be decided in this case is whether the earnings which the deceased would likely have earned had he or she not been killed are “an actual pecuniary loss to the estate” and are, therefore, recoverable by the estate in an action against the wrongdoer. [2] In my opinion, for the reasons which follow, the Legislature has denied such claim to the estate but has provided the deceased’s dependants with statutory cause of action for the lost financial support and other losses resulting from the wrongful death. If the redress under that statutory cause of action is thought to be inadequate, the cure must be legislative, not judicial. II. Facts and Decision of the Chambers Judge: [3] Paul Levy died on January 25, 1999. He was fifteen. His mother, Ann MacLean, along with Paul’s father and two brothers started an action in the Supreme Court of Nova Scotia in which they allege that Paul’s death resulted from the negligent driving of the respondent, Mr. MacDonald. (I will refer to the plaintiffs collectively as the appellants and to Mr. MacDonald as the respondent). [4] The appellants’ action is based on two Nova Scotia statutes. In their claims under each of them, the appellants rely on allegedly wrongful acts of the respondent for which Paul Levy could have sued had he been injured rather than killed. [5] The first statute under which the appellants sue is the Fatal Injuries Act, R.S.N.S. 1989, c. 163. This claim is not directly in issue on this appeal. Under that Act, defined group of persons, including the deceased’s parents, may claim for damages against wrongdoer who caused the deceased’s death. The damages are to compensate the survivors for the loss of financial support which they could reasonably have expected and the loss of the care, guidance and companionship which they would have received from the deceased had he lived. Where child is killed as result of another’s negligence, the fatal injuries action is not likely to provide much in the way of compensation for the surviving family members. Generally no one would have reasonable expectation of receiving significant financial support from the child. While there is provision in the fatal injuries statute for damages for loss of companionship, those damages have generally in the past been fairly modest. [6] The second statute under which the appellants claim is the Survival of Actions Act, R.S.N.S. 1989, c. 453. Under that Act, any right to sue in negligence which Paul would have had, if he had not been killed, survives for the benefit of his estate. However, the Act limits the type of damages which may be recovered by the estate to those which have resulted in “actual pecuniary loss to the estate”. It also specifically excludes damages for punitive and exemplary matters, loss of expectation of life and pain and suffering. The restriction of damages to “actual pecuniary loss to the estate” and the exclusion of damages for loss of expectation of life are at the heart of this appeal. [7] The appellants, in their action under the Survival of Actions Act, advance a claim for Paul’s lost earning capacity. Their statement of claim alleges that “... it was reasonably expected that Paul Levy would in future earn income in employment or otherwise, and by his death his estate has suffered pecuniary loss arising from the loss of Paul Levy’s future earning capacity.” [8] The appellants’ claim is straightforward. They say, in my view correctly, that had he been seriously injured instead of being killed, Paul’s loss of earning capacity would have been treated as capital asset the value of which had been either diminished or destroyed by his injuries. The appellants claim that this capital asset was destroyed by his death, that this loss crystalized in the instant before his death and, therefore, passed to his estate upon death. The estate, they say, can, therefore, sue for damages for this loss under the Survival of Actions Act. [9] The appellants, in essence, ask the Court to interpret the survival of actions legislation so as to prevent an injustice. The deceased here, Paul Levy, was young person. If he had been badly disabled instead of killed as result of the accident, he might well have been able to succeed in substantial claim for damages for his lost earning capacity. Even if he had died from his injuries shortly after that claim had been resolved, his estate would likely have benefited from the award as the unspent portion of the settlement or judgment would pass to the estate on death. As it is, though, unless his estate is entitled to claim for his loss of future earnings, the only significant claim will be under the Fatal Injuries Act. Any recovery under that Act, for reasons mentioned earlier, is likely to be much smaller than would be recovery by seriously injured person who lived to sue. (Of course, none of the facts about liability or damages are before us, so am speaking here in generalities). [10] The respondent says that such damages cannot be awarded under the Survival of Actions Act. His position is that the loss of the deceased’s future earning capacity is not an “actual pecuniary loss to the estate” and therefore is not recoverable. Alternatively, the respondent argues that this claim is for loss of expectation of life and is, therefore, specifically excluded. [11] The appellants applied to MacDonald, A.C.J.S.C. for the determination of preliminary point of law. The question posed for the judge’s determination was whether Paul Levy’s estate has right to claim damages under the Survival of Actions Act in respect to the deceased’s loss of earning capacity. In a written decision reported at (2001), 2001 NSSC 83 (CanLII), 195 N.S.R. (2d) 44, the learned Associate Chief Justice concluded that the estate was not entitled to do so because loss of earning capacity does not constitute an “actual pecuniary loss to the estate,” as required by the Survival of Actions Act. The appellants now appeal that determination. [12] It is important to remember that there has been no trial in this matter. The facts before the Court are those agreed to by the parties for the limited purpose of resolving preliminary point of law. Whether Mr. MacDonald, the respondent on this appeal, was negligent and liable for damages in relation to Paul’s death have not been decided and are not in issue here. The only question on this appeal is one of law, namely, whether, if Mr. McDonald was at fault, Paul Levy’s estate would be entitled to claim damages for Paul’s lost earning capacity. 1. The Question for Decision: [13] To succeed on their Survival of Actions Act claim for damages for Paul’s lost earning capacity, the estate: (a) must have cause of action that survives his death for the benefit of the estate; and (b) the damages claimed for his lost earning capacity must not be excluded by the provisions of that Act. [14] It will be helpful at this point to set out the relevant provisions of the Nova Scotia Survival of Actions Act: (1) Except as provided in subsection (2), where person dies, all causes of action subsisting against or vested in him survive against or, as the case may be, for the benefit of his estate. 4. Where cause of action survives for the benefit of the estate of deceased person, only damages that have resulted in actual pecuniary loss to the estate are recoverable, and in no case are damages recoverable for (a) punitive and exemplary matters; (b) loss of expectation of life; (c) pain and suffering. (emphasis added) [15] For the purposes of this preliminary point of law, it has been assumed that Paul Levy had, at the time of his death, cause of action in negligence “vested in him” against the respondent and that, under s. of the Act, that cause of action therefore survives “for the benefit of his estate”. The issue, therefore, is whether the damages sought by the estate for Paul’s lost earning capacity are excluded under s. 4, either because they do not constitute “an actual pecuniary loss to the estate” or because they relate to damages for “loss of expectation of life.” [16] The main legal question on this appeal thus boils down to the interpretation of few words in Nova Scotia’s survival of actions legislation the phrase that restricts recovery of damages in survival actions to “actual pecuniary loss to the estate” and the phrase that prohibits the award of damages for “loss of expectation of life.” [17] The survival of actions legislation was enacted to relieve against specific aspects of very old common law rule. It was enacted after fatal injuries legislation which addressed another related common law rule. All of this legislation was enacted against particular background of how damages for lost earning capacity are assessed in personal injury actions by living plaintiffs. Therefore, while only few words of the statute are in the foreground of this appeal, there is rich and complicated background against which they must be interpreted. [18] In attempting to find the correct interpretation of these statutory provisions, the Court must “... determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids”: see Ruth Sullivan (ed.), Driedger on the Construction of Statutes (3rd, 1994) at 131. Having considered these matters, the Court should adopt the appropriate interpretation. The appropriate interpretation is one which is plausible in the sense that it complies with the text of the Act, which is efficacious, in the sense that it promotes the legislative purpose and that is acceptable in the sense that the outcome is reasonable and just: Ibid. [19] will, therefore, address the context of the legislation, its purpose and the consequences of the proposed interpretations offered by the parties. will then turn to determination of the appropriate interpretation in light of plausibility, efficary and justice. (i) The common law background: [20] This case concerns the rights of survivors of persons killed as result of the negligence of another person. At common law, the question of what these rights were had simple but harsh answer. There were none. This result flowed from two very old common law rules. [21] The first of those rules was that the estate of deceased person could not sue or be sued for any tort committed against or by the deceased in his or her lifetime: John G. Fleming, The Law of Torts (9th, 1998) at 741; P.A. Landon, Pollock’s Law of Torts (14th, 1939) at 53 54. The second rule was that there was no action at common law for wrongful death. That is, one person could not recover damages from another person for causing the death of third: see e.g., Alberta Law Reform Institute, Report No. 76: Should Claim for the Loss of Chance of Future Earnings Survive Death? (1998). For example, the death of family’s breadwinner due to the wrongful act of another person did not give rise to any right of action on the part of the family members whom the deceased had supported: see A.I. Ogus, The Law of Damages (1973) at 264; Pollock’s Law of Torts, supra at p. 54 58. [22] The result of these two rules was as follows. First, where person was killed due to the fault of another, no cause of action in tort, which the deceased would have had if he had lived, survived his death for the benefit of the estate. Second, those who suffered financial loss as result of the loss of support previously provided to them by the deceased had no independent cause of action against the wrongdoer who caused the death. Thus, the estate had no right of action derived from the wrongful act suffered by the deceased because the deceased’s claim did not survive his or her death. The deceased’s dependants had no separate claim for the loss of support suffered directly by them as result of the wrongful act because no cause of action for wrongful death was recognized. (ii) Legislative reforms: [23] These rules were unsatisfactory. They were changed by legislation in two main respects. First, the dependants of deceased person were given statutory right to sue the wrongdoer whose negligence caused the death of the deceased. Under these statutes (often called “fatal injury” or “wrongful death” statutes), they could recover compensation for the amount they would have received from the deceased had he or she not been killed. Second, legislation (generally called survival of actions legislation) was enacted stating that causes of action which existed in favour of or against the deceased at the time of death survived for or against the deceased’s estate. It will be helpful to review these legislative developments. (a) Wrongful death claims: [24] As noted, the common law did not recognize claim for wrongful death. This rule was considerably amended by legislation in England in 1846 and similar changes occurred in Canadian common law jurisdictions about the same time. By 1873, Nova Scotia legislation permitted an action to be brought for the benefit of the deceased’s “wife, husband, parent or child” against person whose wrongful act caused the deceased’s death: R.S. 1873, c. 113, s. and 2. [25] This action was for what is often referred to as the “dependancy amount”. The damages awarded (apart from certain other claims not relevant here) were to be based on the financial support that the wife, husband, parent and child could reasonably have expected to receive from the deceased had he or she not been killed. The defendant’s liability depended on it being shown that the death was caused by the defendant’s wrongful act which would have entitled the injured party to sue had death not occurred. However, the damages recoverable were based on the loss his or her death caused to the surviving spouse, parent and children. [26] The starting point for the calculation of that loss was (and is) the earnings which the deceased would have received had he or she not been killed; in other words, the earnings during the period by which the deceased’s working life was shortened by the wrongful death. That period is included in what is often called the “lost years”, that is, the years of life lost as result of the wrongful act. [27] It is significant that the primary purpose of this legislation was to put the survivors of person wrongfully killed in the financial position they would have been in had the deceased lived and continued to provide support. [28] In the case of Nova Scotia’s legislation, this basic purpose has been expanded in two respects. First, in 1956, the Fatal Injuries Act (which had been enacted in 1873) was amended to make it clear that, in assessing the compensation to be paid, sums payable on the death of the deceased such as pensions or proceeds of insurance were not to be deducted from the compensation otherwise payable by the defendants: S.N.S. 1956, c.26, s. 1(2). Second, in 1986, the Act was amended to permit recovery of damages for the guidance, care and companionship which the survivors lost as result of the deceased’s death: S.N.S. 1986, c. 30, s. 1(d). In addition to these two major changes, the list of persons included in the definition of dependants has been updated from time to time. [29] think it important to note that this fatal injuries legislation does not do away entirely with the common law rule barring wrongful death actions. Rather, it only modifies the rule in specific ways. The claim under the legislation is limited to defined class of persons. It provides for compensation for all of them, but in one action, and the compensation to which they are entitled is primarily for the loss of support they reasonably could have expected to receive from the deceased had he or she lived. [30] note that this is not an old statute that has been ignored by the Legislature in the many years since it was first enacted. The statute has been amended several times with respect to both the types of damages that are recoverable and the definition of the persons for whose benefit the action may be brought. think it is significant that the Legislature has, over the years, including quite recently, repeatedly addressed itself to both these issues. (b) Survivorship Claims: [31] As noted earlier, the common law rule was that actions in tort did not survive the death of the injured person. This was altered in all Canadian common law jurisdictions and in England by legislation providing that all, or virtually all, causes of action survive for the benefit of, or against, the estate of the deceased. [32] The legislative change in England was made by the Law Reform (Miscellaneous Provisions) Act, 1934. This was nearly 90 years after the introduction of statutory wrongful death actions. The 1934 Act provided that, upon death, all causes of action subsisting against or vested in the deceased (except defamation, seduction and inducing one spouse to leave another) survived against or for the benefit of the deceased’s estate: s. 1(1). There were certain restrictions on the damages which could be recovered. For example, there could be no award for exemplary damages: s. 1(2). Apart from such restrictions on the damages recoverable and the exclusion of the three types of action referred to earlier, the legislation placed the estate of the deceased in the same position with respect to the action as the deceased would have been had death not occurred. [33] It is important to note that the English statute, unlike the later Nova Scotia one, did not contain stipulation that only damages which were an “actual pecuniary loss to the estate” could be recovered and it did not bar the recovery of damages for loss of expectation of life. [34] The impact of the English legislation was considered by the House of Lords in Rose v. Ford, [1937] A.C. 826 (H.L.). That case concerned young woman who had been seriously injured in car accident and died from her injuries four days later. The woman’s father sued both under the Fatal Accidents Act (1846) (i.e. the wrongful death statute) and under the 1934 survival of actions legislation. An award was made at trial under the former Act which was not challenged on appeal. An award was also made under the survival of actions legislation, but the trial judge refused to include damages for loss of expectation of life. The Court of Appeal agreed that no such damages could be awarded in survival action. The father appealed to the House of Lords and his appeal succeeded. [35] In the House of Lords, four extended speeches were delivered. Lord Atkin (with whom Lord Thankerton concurred) held that if, as he decided was the case, living plaintiff could recover damages for loss of expectation of life, it followed that such “... right is vested in him in life and on his death passes under the Act of 1934 to his personal representative.” at 834. He specifically refrained from deciding, however, how those damages should be calculated as that question was not before the House. Lord Russell of Killowen agreed. He stated that living plaintiff could recover damages for loss of expectation of life and that it followed from the words of s. 1(1) of the 1934 Act that the cause of action is made to survive for the benefit of the estate and is, therefore, enforceable by her legal personal representative against the defendant: at 837. Lord Wright was of the same view, joining the other Law Lords in emphasizing that the result flowed from the fact that living plaintiff could recover damages for loss of expectation of life and that such claims, not being excluded from the general provisions of the 1934 Act, could be asserted after death by the deceased’s personal representatives. [36] Lord Roche agreed that living plaintiff could claim for loss of expectation of life and that the 1934 statute permitted this claim to be asserted by the personal representatives. He also commented on the nature of the compensable loss under this head. He noted that the sum of £1000, which the Court of Appeal found would have been appropriate if damages were recoverable for loss of expectation of life, “... was obviously and rightly arrived at without regard to the question of the amount of future earnings ... [O]rdinarily, person may be assumed to have or be able to earn enough to live his or her life and to enjoy it. Earnings or income are otherwise and to an extent beyond this irrelevant.”: at 861. (emphasis added) [37] turn now to the development of survival of actions legislation in Canada. Dean Wilbur F. Bowker provided succinct summary as follows: The first survival legislation in Canada appeared in Ontario in 1886 as provision in the Trustee Act. The Northwest Territories borrowed Ontario’s Act and Alberta kept it. Thus section 32 of Alberta’s present Trustee Act provides for survival where the victim dies and section 33 where the wrongdoer does. The other western provinces have long had similar provisions. England had none until the Law Reform Act of 1934. Later each Maritime province passed Survival of Actions Act based on the English Act. Newfoundland’s survival provisions are in the Trustee Act, and are confined to torts to property. (W.F. Bowker, “The Uniform Survival of Actions Act” (1964), Alberta L.R. 197 at p. 197) [38] As Dean Bowker noted, general statutory provision for survival of actions in Canadian common law jurisdiction first appeared in Ontario in 1886 (Statute Amendment Act, S.O. 1886, c. 23.). (This was nearly fifty years before the English statute of 1934). The Ontario statute, which was adopted in some other Canadian jurisdictions, simply provided that rights of action, except in defamation, survived and could be asserted by the legal representatives of the deceased person. [39] The history of the Ontario provision is reviewed in detail in Balkos v. Cook (1990), 1990 CanLII 6743 (ON CA), 75 O.R. (2d) 593 (C.A.). One aspect of that history is particularly relevant to the issues on this appeal. [40] Not long after the decision of the House of Lords in Rose v. Ford in 1937, the Ontario provision was amended to undo the effects on Ontario law of that decision being followed. In Balkos, the Court cited 1938 article by Dean Cecil Wright (“The Abolition of Claims for Shortened Expectation of Life by Deceased’s Estate” (1938), 16 Can. Bar Rev. 198, at pp. 193-94) which described the background to this amendment as follows: Ontario had on the statute books for over fifty years legislation which, while differing in many respects from the English Act, undoubtedly was designed to achieve the same result of allowing the personal representative of person injured by tortious conduct to continue the action for the benefit of the estate. For over fifty years no one had thought that personal representative could collect damages for the estate of deceased person based solely on the fact that such person’s life had been shortened or that he had been killed by the defendant’s tortious conduct. Immediately after the new English legislation and the decision of the House of Lords in Rose v. Ford we find all this gone. personal representative is entitled on behalf of the estate to collect damages for the death. Presumably, therefore, this has been, in theory, the law of Ontario for over fifty years only no one knew it until in England legislation similar to ours was passed. (emphasis added) [41] The Nova Scotia survival of actions legislation was enacted in 1954 (Survival of Actions Act, S.N.S. 1954, c. 12). It was thus drafted in light of, among other things, the House of Lords decision in Rose v. Ford and the Ontario amendments of 1938 in response to it. The Nova Scotia legislation contained several exclusions and limitations not found in the earlier Ontario and English legislation. The Nova Scotia Act excluded causes of action for adultery and inducing spouse to leave or remain apart from his or her spouse: s. 2. Most relevant to this appeal is the limitation on damages set out in s. of the 1954 Act which provided: Where cause of action survives for the benefit of the estate of deceased person, only damages that have resulted in actual pecuniary loss to the estate are recoverable; and in no case are damages recoverable for: (a) punitive and exemplary matters; (b) loss of expectation of life; (c) pain and suffering. (emphasis added) [42] Thus, the Nova Scotia legislation excluded damages for loss of expectation of life, and thereby excluded the sorts of claims discussed by the House of Lords in Rose v. Ford. It also excluded damages for pain and suffering. In at least these two respects, the estate of person killed as result of the negligence of another (or injured and dying from some other cause before the negligence claim was resolved) was in significantly different position than seriously injured plaintiff who was able to pursue the negligence claim to judgment (or settlement) while living. The living plaintiff may recover substantial non-pecuniary damages for pain and suffering and loss of expectation and enjoyment of life. The estate of the person cannot. [43] The Nova Scotia legislation also limited damages to “... damages that have resulted in actual pecuniary loss to the estate ...”, limitation not found in the English statute. Like the English act, the Nova Scotia statute provided that the rights conferred under it were in addition to and not in derogation of rights of dependants under the Fatal Injuries Act: s. 5. The current form of the Act retains these features. (I have set out the relevant current provisions above.) [44] In the early 1960's, the Uniform Law Conference of Canada studied and reported on the subject of survival of actions legislation and drafted Uniform Survival of Actions Act: see W.F. Bowker, “The Uniform Survival of Actions Act” (1964), Alberta L.R. 197. The subject was initially referred to the Alberta Commissioners who reported in 1961. Their report reviewed the various provincial and territorial enactments and, among other issues, considered the question of survival of claims for loss of future earnings (what we would now call lost earning capacity) following death. The Alberta Commissioners in 1961 Report of the Alberta Commissioners in 1961 Proceedings of the Forty-Third Annual Meeting of the Conference of Commissioners on Uniformity of Legislation in Canada (August, 1961) were of the view that such claims did not survive death: At least one of the provinces excludes damages for death and compensation for expected earnings subsequent to death. We think this exclusion is not necessary because these items are not included in the first place; they are not surviving rights. ... (page 110) (emphasis added) [45] In the draft Uniform Act filed with the Report of the Alberta Commissioners, s. 6(1)(f) provided that no damages were recoverable for loss of expectancy of earnings subsequent to death. The Commissioners added note indicating they did not recommend inclusion of this restriction as they thought such loss was not recoverable in any case. [46] The Uniform Act was finalized in 1963 and its key provisions were as follows: (1) All causes of action vested in person who dies after the commencement of this Act, other than causes of action in respect of (a) adultery, (b) seduction, or (c) inducing one spouse to leave or remain apart from the other, survive for the benefit of his estate. (2) The rights conferred by subsection (1) are in addition to and not in derogation of any rights conferred by The Fatal Accidents Act. 4. All causes of action subsisting against person who dies after the commencement of this Act survive against his estate. 6. Where cause of action survives for the benefit of the estate of deceased person, only damages that have resulted in actual pecuniary loss to the deceased person or the estate are recoverable and, without restricting the generality of the foregoing, the damages recoverable shall not include punitive or exemplary damages or damages for loss of expectation of life, pain and suffering or physical disfigurement. (emphasis added) [47] Apparently accepting the view of the Alberta Commissioners, the Uniformity Commissioners did not include an express exclusion of damages for loss of expectancy of earnings subsequent to death. [48] Dean Wilbur F. Bowker was one of the Alberta Commissioners. He published an article in 1964 about the Uniform Survival of Actions Act to which have already referred. While the article does not address explicitly the issue of the deceased’s lost earning capacity, it does deal at length with the Uniform Act’s exclusion for damages for loss of expectation of life. Dean Bowker noted that legislation in all but two common law provinces had abolished the claim by statute (Nova Scotia among them, as mentioned earlier). The reason for the Conference’s adoption of that position is instructive. The Conference was of the view that, given the fatal injuries legislation which had been earlier enacted, the award of loss of expectation of life under the survival of actions legislation would be of no practical assistance to dependants. As Dean Bowker put it: ... The legislation should not cast its net so wide as to allow the estate of victim to make claim that represents no loss whatever to the estate. If the Fatal Accidents Act is too narrow it should be widened; and Survival Act should not be the vehicle for doing this indirectly, erratically and inefficiently: at 201 (emphasis added) [49] The texts of the current survival legislation in the common law provinces vary somewhat from jurisdiction to jurisdiction. These have been well summarized elsewhere and will not repeat these summaries here: see S.M. Waddams, The Law of Damages (looseleaf edition, updated December 2001) at para. (c) Compensation for the “lost years” in personal injury actions: [50] There is another common law rule that is part of the context for the interpretation of the survival of actions legislation. That rule concerns the calculation of the loss of future income in personal injury claims by living plaintiffs. [51] In many personal injury cases, one of the most significant claims is for compensation for the injured person’s loss of the ability to earn income which has resulted from the accident. This is often referred to as the loss of future earning capacity. Generally speaking, the approach is to calculate lump sum representing the present value of the income which the victim would likely have earned had he or she not been injured. There are many legal rules concerning how the proper amount of such claims should be calculated. However, only one aspect of this calculation is of concern in this case. [52] Suppose the accident not only disables the victim from earning income, but reduces his or her life expectancy The length of the reduction in life expectancy is referred to as “the lost years”. Should the victim’s lost earnings be determined having regard to the victim’s life expectancy as if there had been no accident or should the amount be determined on the basis of the victim’s reduced life expectancy after the accident? As the question is often put, should the award for lost earning capacity compensate for the “lost years”? [53] The answer to this question today, both in Canada and England, is yes; an award for lost earning capacity is based on the pre-accident life expectancy of the victim. This makes perfect sense because the object of the award is to put the injured person, as nearly as money can, into the position he or she would have been in had there been no injury. Without the injury (and subject to the risks of life and career) the person would likely have continued to earn income until normal retirement age. The award for the lost years thus compensates for the loss of that period of earning as result of the accident. [54] While this law is clear today, the law’s development on this point has rather tortuous history. In England, the answer to the “lost years” question was, at best, uncertain until the decision of the Court of Appeal in Oliver v. Ashman, [1962] Q.B. 210 (C.A.). (For discussion of the law before Oliver v. Ashman, see, for example, A.L. Armitage et al (eds.), Clerk Lindsell on Torts (12th, 1961) at para. 343; and see as well the 11th edition of the same work (1954) at para. 450). That case decided that the recovery for future loss of earnings should be confined to the period during which the plaintiff was likely to remain alive. The calculation was based on the victim’s post-accident, shortened life expectancy; lost earnings were not recoverable for the “lost years”. [55] Oliver v. Ashman is important for four reasons. First, and as already noted, it settled the law in England that expected earnings during the lost years were not compensable in personal injury action by living plaintiff. Second, the court held that this result was mandated by the decision of the House of Lords in Benham v. Gambling, [1941] A.C. 157. Third, the Court expressed the view, following Benham v. Gambling, that the same approach to the “lost years” question should be followed in both personal injury and survival of actions claims. Finally, and notwithstanding the view just mentioned, the case recognized that treating the lost years question the same way in both personal injury and survival of action cases did not always produce sensible results. Holroyd Pearce, L.J. began his discussion of the “lost years” issue by noting that neither of the possible approaches, (i.e., using pre-accident or post-accident life expectancy to calculate the loss of future earnings) produced “wholly satisfactory” result: at 225. Echoing some comments made by Professor Jolowicz in note in [1960] Cambridge Law Journal 160, he observed that the trial judge’s approach of using pre-accident life expectancy (i.e., ignoring the shortened expectation of life) seemed more appropriate in the case of living plaintiff while basing the award on the post-accident life expectancy was more apt in the case of survival of actions claim: 225. [56] As Professor Jolowicz pointed out in the note have just referred to, if the lost years are compensated in the case of living plaintiff, logic would suggest that “... damages for loss of earnings calculated by reference to the deceased’s pre-accident expectation of working life should be awarded for his estate ...” under the survival of actions legislation. However, he continued: So far as is known this has never in fact been done, nor is it desirable that it should be done. Whatever the logic of Rose v. Ford [1937] A.C. 826 and similar cases, the notion of awarding damages to deceased person’s estate in respect of the tort which killed him is merely fanciful so long as the Fatal Accidents Acts remain on the statute book. The loss is not that of the deceased but of his dependants, and those Acts provide the proper medium for the award of damages. It is to be observed, moreover, that damages under the Fatal Accidents Acts are calculated by reference to what the deceased would have earned if he had lived. (emphasis added) [57] should note here one aspect of the decision of the House of Lords decision in Benham v. Gambling which was relied on by the Court in Oliver. Benham was survival of actions case. Viscount Simon, speaking on behalf of unanimous House of Lords, stated that damages for loss of expectation of life (which had been held to be recoverable in survival of actions claims in Rose v. Ford) could not include any allowance for financial losses during the period of which the victim has been deprived: at 167. This is the statement relied on by the Court of Appeal in Oliver v. Ashman for the proposition that loss of prospective earnings for the lost years were not recoverable. [58] Until it was overruled in 1978, Oliver v. Ashman settled the law of England concerning the calculation of loss of future earning capacity in personal injury action by living plaintiff. This position changed, however, when in 1978 the House of Lords reversed Oliver v. Ashman in Pickett v. British Rail Engineering Ltd., [1979] All E.R. 774. [59] Pickett was claim by living plaintiff for damages suffered as result of his having contracted lung disease from inhaling asbestos in the defendant’s workshops. The lung disease greatly reduced Mr. Pickett’s life expectancy; at the time of trial, it was only one year. The trial judge awarded damages for loss of prospective earnings but, following Oliver v. Ashman, limited the award to the period of Mr. Pickett’s shortened life expectancy. He appealed, but died before the appeal had been heard by the Court of Appeal. His widow was substituted as plaintiff. The Court of Appeal, while increasing the amount of general damages, did not disturb the trial judge’s award in relation to loss of future earnings. The plaintiff appealed this aspect and the defendant appealed the increase of general damages to the House of Lords. will limit my consideration of the case to the issue of damages for loss of future earnings during the so-called lost years. [60] The House decided (Lord Russell of Killowen dissenting) that Oliver v. Ashman should be overruled. In assessing the loss of future earnings, the plaintiff’s pre-accident (or in this case pre-illness) life expectancy was to be considered. [61] Lord Wilberforce began his speech by pointing out the apparent injustice on the facts of Pickett. He noted that the law was clear that because Mr. Pickett had brought action in his life-time and recovered judgment, his dependants could not bring an action after his death under the fatal injuries legislation. He also noted that, in fatal injuries claim, unlike personal injury action by living plaintiff, the award would be based on the probable future earnings of the deceased according to his pre-accident life expectancy. In other words, even though Mr. Pickett had died before his appeal had been heard in the Court of Appeal, his widow had been denied any substantial recovery on account of loss of future earnings. The action had been brought and tried while Mr. Pickett had been alive and, therefore, no further action to benefit the dependants could be brought under the fatal injuries legislation. [62] Lord Wilberforce then turned to Oliver v. Ashman. He rejected the view expressed by Holroyd Pearce, L.J. in Oliver that the issue had been settled in Benham v. Gambling. He was of the view that Viscount Simon in Benham was not referring to claim by living person for earnings during the “lost years”. [63] Turning to consider the question as matter of principle, Lord Wilberforce rejected the notion that nothing is of value unless the person is there to spend or save it. He characterized person’s good health and sound earnings as “... an asset of present value quite separate and distinct from the expectation of life which every man possesses ...”. (at 780) Lord Wilberforce added: do not think that the problem can be solved by describing what has been lost as an ‘opportunity’ or ‘prospect’ or an ‘expectation’. ... [The law] always has to answer question which in the end can hardly be more accurately framed than as: “Is the loss of this something for which the claimant should and reasonably can be compensated?” (at 781) (emphasis added) [64] Lord Wilberforce concluded in these words: My Lords, in the case of the adult wage earner with or without dependants who sues for damages during his lifetime, am convinced that rule which enables the ‘lost years’ to be taken account of comes closer to the ordinary man’s expectations than one which limits his interest to his shortened span of life. The interest which such man has in the earnings he might hope to make over normal life, if not saleable in market, has value which can be assessed. man who receives that assessed value would surely consider himself and be considered compensated; man denied it would not. ... (p. 781) (emphasis added) Lord Salmon, Lord Edmund-Davies and Lord Scarman agreed. [65] The law lords agreed that compensating for income that would likely have been earned during the ‘lost years’ is consistent with the fundamental principle of compensation; that is, to put the plaintiff in the financial position he or she would have been in had the compensable injury not occurred. They also affirmed that the loss of future earnings during the lost years has value that can be assessed. They seemed to acknowledge, however, that the loss is of an ‘opportunity’ or ‘prospect’ or an ‘expectation’: see e.g. Lord Wilberforce at 780. Lord Scarman noted that there are “... logical and philosophical difficulties [in] compensating man for loss arising after his death ...” and that while such losses are pecuniary in the sense that “... the money would have been his to deal with as he chose, had he lived ...”, the loss is also, “... to some extent ...”, non-pecuniary loss: at p. 798. [66] Lord Russell of Killowen dissented on the lost years issue. While agreeing with his colleagues that Benham v. Gambling did not settle the issue as the Court of Appeal had thought in Oliver, he held that the matter should be resolved by legislation rather than judicial decision. He rejected the comparison to assessment of damages under the fatal injuries legislation, noting that fatal injuries claims are brought on behalf of living people “... in respect of their living periods, which is expressly based on what they have lost by death.” [67] After Pickett, the law of England in personal injury cases brought by living plaintiffs was that the calculation of loss of future earnings should provide compensation for the lost years. [68] The same rule was accepted in Canada. While apparently both before and after Oliver v. Ashman the question was the cause of some doubt in Canadian courts, the Pickett approach was unequivocally endorsed by the Supreme Court of Canada in Andrews v. Grand Toy Alberta Ltd., 1978 CanLII (SCC), [1978] S.C.R. 229. While the Court referred to this question as controversial one, it endorsed the view that, in personal injury actions by living plaintiffs, the claim for loss of future earnings should be assessed on the basis of pre-accident life expectancy. The lost years should be the subject of compensation: at 252. [69] Also relevant here is the way in which the Supreme Court of Canada characterized the loss of future earnings. The Court referred to this claim as one for the loss of earning capacity rather than of future earnings, emphasizing that it is “capital asset” that has been lost and which must be valued: at 251. The Court recognized, however, that determining this value requires gazing “... more deeply into the crystal ball ...” in order to discover the sort of career the victim would have had the “prospects” and “potential” before the accident: at 251. It is also worth noting that the Supreme Court of Canada in Andrews, consistent with longstanding practice, included the damages for lost earning capacity as part of the award of “general” damages: Andrews at p. 265 266. To understand why this is significant point, must say word about the nature of “general” damages in personal injury cases. [70] In personal injury cases, the damage award has two main components. The first is the special damages component which relates to pre-trial pecuniary loss. The second is the general damages component which includes all non-pecuniary losses as well as future pecuniary losses: see K. Cooper-Stevenson and Iwan Saunders, Personal Injury Damages in Canada (1981), at 43. This distinction between general and special damages is discussed as followed in Cooper-Stevenson and Saunders at p. 43 44: The primary distinction in personal injury cases is between “special damages”, which constitute pre-trial pecuniary loss, and “general damages”, which constitute future pecuniary loss and all non-pecuniary loss. This corresponds with the fourfold division of heads of damage recently adopted in Canada for personal injury cases. The distinction between special and general damages in this sense is now well accepted, and was outlined by Lord Goddard in B.T.C. v. Gourley, [1956] A.C. 185 (H.L.) as follows: In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage, which has to be specially pleaded and proved. This consists of out-of-pocket expenses and loss of earnings incurred down to the date of trial, and is generally capable of substantially exact calculation. Secondly, there is general damage which the law implies and is not specially pleaded. This includes compensation for pain and suffering and the like, and, if the injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in the future. The rationale of this distinction is that pre-trial pecuniary loss is capable of fairly accurate mathematical calculation. This was emphasized by Fullagar J. in Paff v. Speed (1961), 105 C.L.R. 549 (Aus. H.C.) where he explained the categorization more fully as follows: Special damages are awarded in such cases in respect of monetary loss actually suffered and expenditure actually incurred. Their two characteristics are (1) that they are assessed only up to the date of verdict, and (2) that they are capable of precise arithmetical calculation or at least of being estimated with close approximation to accuracy. The familiar examples are medical and surgical fees paid or payable, ambulance and hospital expenses and loss of income. Where the plaintiff has been employed at fixed wage or salary, his loss of income can commonly be calculated with exactness. Where the plaintiff has not been employed, but is, for example, professional man, his monetary loss can be estimated without difficulty by reference to his past earnings. In high proportion of cases the amount of the “special damages” is agreed between counsel for the plaintiff and counsel for the defendant. “General damages” on the other hand, are of their very nature, incapable of mathematical calculation, and (although the expression is apt to be misleading) commonly very much “at large”. They are at large in the sense that jury has, in serious cases, wide discretion in assessing them. Also general damages may be assessed not with reference to any limited period, but with reference to an indefinite future. ... (emphasis added) [71] Although the Court in Andrews did not define the terms ‘pecuniary’ and ‘non-pecuniary’, think these terms are used in their ordinary sense. pecuniary loss is one that is “... of, concerning or consisting of money” (see Katherine Barber, The Canadian Oxford Dictionary (1998) at p. 1071). non-pecuniary loss is one that is not, such as pain and suffering and loss of enjoyment of life. [72] Thus, while lost earning capacity is pecuniary loss because it is loss ‘of, concerning or consisting of money’, it is the loss of future prospect or potential. Damages to compensate this loss are general damages because they are not “... capable of precise arithmetical calculation or at least of being estimated with close approximation to accuracy”. (See Cooper-Stevenson and Saunders, above at p. 44). [73] The facts that, in the case of living plaintiff, the loss of earning capacity is viewed as the loss of “capital asset” and that account must be taken of the “lost years” in assessing its value, play an important part in the appellants’ argument in this appeal. Reduced to the basics, the submission is that once claims by living plaintiffs for future loss of earnings are treated as capital asset with present value calculated by including the lost years, it follows that the same approach should be taken in assessing the estate’s damages in survival of actions case. It is therefore necessary to examine how the “lost years” issue has been treated by the Courts in survival of actions claims. (d) The lost years and survival claims: [74] It would appear from highly respected texts and academic commentary that there was no real controversy, even before Oliver v. Ashman, concerning the rule about the lost years in survival actions. The rule was that there could be no claim for loss of future earnings beyond the time of death: see, e.g., J.A. Jolowicz, “Damages Prospective Loss of Earnings Reduced Expectation of Life”, [1960] Camb. L.J. 160 at 162 163; A.I. Ogus, The Law of Damages (1973) at 116; Clerk Lindsell (10th, 1947) at 290; Clerk Lindsell (12th, 1961) at para. 386; Clerk Lindsell (13th, 1969) at para 419; Clerk Lindsell (14th, 1975) at para. 419. [75] It is convenient at this point to look in more detail at the decision of the House of Lords in Benham v. Gambling, supra, which addressed the nature of the estate’s recovery under the English survival of actions statute for the deceased’s loss of expectation of life. [76] That case concerned an action by the personal representative of two and one-half year old child who had been severely injured in motor vehicle accident and died the same day. The only issue at trial was the amount of damages which should be awarded and in that regard, it was recognized that the only substantial claim which could be asserted was for the child’s lost expectation of life. The trial judge awarded £1200 and that sum was upheld on appeal to the Court of Appeal. The further appeal to the House of Lords raised only the issue of the assessment of damages for loss of expectation of life. [77] Viscount Simon delivered the only extended speech in the House of Lords. He held that the damages for loss of expectation of life should be reduced to £200 and that “... in assessing damages under this head, whether in the case of child or an adult, very moderate figures should be chosen.”: at 168. He noted (at 167) that “[of] course, no regard must be had to financial losses or gains during the period of which the victim has been deprived. The damages are in respect of loss of life, not of loss of future pecuniary prospects.” [78] So long as Oliver v. Ashman and Benham v. Gambling remained good law, there was no reason to think that future loss of earnings beyond the time of death were recoverable in survival of actions case. [79] However, Benham v. Gambling and Oliver did plant the seed of an important change in English law. Both cases took the view that the rule about recovery for the lost years must be the same in both personal injury actions by living plaintiffs and in survival of actions claims. It followed that when the House of Lords, in Pickett overruled Oliver and held that prospective loss of earnings were recoverable for the “lost years” in actions by living plaintiffs, the extension of that approach to survival of actions cases was inevitable. [80] The inevitable happened when the House decided Gammell v. Wilson, [1981] All E.R. 578. The case involved the claims by the parents of two young men who had been killed in accidents caused by the negligence of the defendants. Claims were asserted under both the fatal injuries and the survival of actions legislation. In both cases, awards were made under the survival of actions legislation for loss of prospective earnings during the lost years. These awards were upheld by the House of Lords. [81] The appellant’s submission in this case is that we ought to interpret the survival of actions legislation in Nova Scotia to reach the same result in this case as was reached by the House of Lords in Gammell. It is useful, therefore, to note the extreme reluctance with which the House of Lords reached that conclusion. [82] Lord Diplock commented that, in his opinion, the result in Gammell was neither sensible nor just: at 581. Lord Fraser of Tullybelton had this to say at p. 588: It is, no doubt, just and sensible that, where the death of the family breadwinner is caused by the negligence of some other person, that person should be liable to compensate the deceased’s dependants for the injury which they have suffered from the death. The main element of injury will normally be loss of support. Such compensation is provided for by the Fatal Accidents Act 1976. But it seems to me difficult to justify law whereby the deceased’s estate, which may pass to persons or institutions in no way dependent on him for support, can recover damages for loss of earnings, or other income, which he would probably have received during the ‘lost years’. It is particularly difficult to justify the law in cases such as the present, in each of which the deceased was young man with no established earning capacity or settled pattern of life. In such cases it is hardly possible to make reasonable estimate of his probable earnings during the ‘lost years’ and it is, think, quite impossible to take the further step of making reasonable estimate of the free balance that would have been available above the cost of maintaining himself throughout the ‘lost years’, and the amount of that free balance is the relevant figure for calculating damages. The process of assessing damages in such cases is so extremely uncertain that it can hardly be dignified with the name of calculation: it is little more than speculation. Yet that is the process which the courts are obliged to carry out at present. (emphasis added) [83] Lord Russell of Killowen (the sole dissenter in Pickett) summed up his reluctance to apply Pickett to survival of actions cases as follows at p. 590: My Lords, regret these decisions. think that the law has gone astray by excessive refinement of theory. would welcome legislation which overruled in the future the results of the decision in Pickett, and its extension in cases such as the present, which since Pickett has led to almost grotesque embodiment of estimates, or rather guesses. That might be combined with legislation which in some way prevented respondents being barred from Fatal Accidents Act claim by the fact that the deceased pursued his claim to judgment. (emphasis added) [84] Finally, would quote the following remark of Lord Scarman at p. 595: My Lords, there is some disquiet expressed by judges, and understandably felt by insurers, about two aspects of the law: the ‘double recovery’ now possible in some cases, and the very great discrepancy which can arise, as happened in the Furness case, between the damages recoverable by the estate for the lost years and the damages recoverable by the dependants under the Fatal Accidents Act. Each of these possibilities may well be mischief; certainly, law which allows the discrepancy to arise wears the appearance of anomaly, and is unlikely to be understood or acceptable. [85] Parliament reversed the effects of Gammell the next year by the Administration of Justice Act, 1982. Section 4(2)(a) specifically excepted from actions under the 1934 survival of actions legislation claims for exemplary damages and “... any damages for loss of income in respect of any period after that person’s death.” (emphasis added) In other words, there could be no claim for prospective loss of income under the survival of actions legislation with respect to the period following the death of the deceased. [86] Canadian law, with very few exceptions, has not taken the course followed by the House of Lords in Gammell. It must be remembered as well that the wording of many of the Canadian survival of actions statutes is significantly different than the English statute considered in Gammell. [87] have already referred to Dean Wright’s article in 1938, Dean Bowker’s article and the Uniformity Commissioners Report and draft act in the early 1960's. These all express the view that the various survival of actions statutes in Canada were not intended to give the estate claim for the deceased’s loss of future earnings. Writing in 1981, Cooper-Stevenson and Saunders stated that it was settled, as matter of practice, in all Canadian jurisdictions that the estate could not recover for the deceased’s loss of future earnings in survival of action claim: at 390. They could find no case in Canada in which damages had been awarded in survival action for future earnings. [88] While the learned authors questioned whether this result was fully justified on the wording of some of the provincial statutes, their observation about the settled practice is an important part of the context in which Nova Scotia’s survival statute was enacted. In 1954 (the year the Nova Scotia Act was passed) it was settled practice in other Canadian jurisdictions which had survival legislation that loss of income during the “lost years” was not compensable under the survival of actions legislation. This is not only the view of Cooper-Stevenson and Saunders but of the Uniformity Commissioners in the early 1960's (see above) and of the Alberta Institute of Law Research and Reform in 1977: see Alberta Law Reform Institute, “Should Claim for the Loss of Chance of Future Earnings Survive Death” (Report no. 76, 1998) at 11. This view is strongly supported by the complete absence of case authority to the contrary. In 1954, the same position on the point was held in England. have earlier reviewed the leading texts and scholarly writing supporting that view. (iii) Conclusions concerning context: [89] It may be helpful to summarize the most important conclusions to be drawn from this review of the context in which the Nova Scotia survival of actions legislation was enacted. [90] First, the English survival of actions statute of 1934 did not explicitly exclude damages for pain and suffering or for loss of expectation of life. The English courts held that these were recoverable heads of loss in survival action by the personal representatives of deceased person. By contrast, the Nova Scotia statute explicitly prevented these results by expressly excluding recovery under these heads. [91] Second, English law was somewhat uncertain until Oliver v. Ashman as to whether living plaintiff could recover damages for loss of earnings during the so-called “lost years”. However, it was generally accepted until 1978 that there could be no claim for loss of expected future earnings for the time after death in an action by personal representatives under the survival legislation. The same may be said of the Canadian position. [92] Third, it was settled in England by the early 1940's that damages for loss of expectation of life in survival action (which was permitted in England but not under the Nova Scotia Act) did not include any amount on account of the loss of earnings which could have been anticipated had death not occurred. [93] Fourth, the rights under the Survival of Actions Act were said to be in addition to and not in derogation of any rights under the Fatal Injuries Act. This makes it unlikely that the Legislature foresaw any significant overlap between the remedies available under the two acts. Of course, the calculation of both the dependancy amount, which may be recovered by dependants under the Fatal Injuries Act, and the deceased’s loss of prospective earnings are based on the income the deceased would have earned had he or she lived. It follows that if both claims may be asserted, there is the potential of the defendant being required to pay damages twice over for essentially the same loss. [94] These problems of overlap and potential double recovery might not be insuperable in practice. It is hard to think, however, that the Legislature would have enacted provision which created such overlap and potential for double recovery without addressing, in any manner, the way in which these problems should be resolved. more plausible inference is that the Legislature did not foresee that the loss of prospective earnings might be recovered in survival action and, therefore, did not think that any serious problems of overlap or double recovery were likely to arise. [95] The cases deciding that the “lost years” should be counted in calculating damages for lost earning capacity for living plaintiff treat the loss as one capable of being valued in money or, in Canada, as something in the nature of capital asset whose value has been diminished or extinguished. However, the cases also recognize that this loss is the loss of an ‘opportunity’, ‘prospect’ or an ‘expectation’ (see Pickett at 781), that it relates to the loss of ‘prospects and potential’ and requires gazing “... deeply into the crystal ball ...” (see Andrews at 251). The damages to compensate this loss are categorized as general damages because they cannot be calculated with anything approaching mathematical precision. [96] Survival of actions legislation was enacted to undo the effects of general common law rule holding that personal actions in tort did not survive for or against deceased person. It had the general purpose of putting the deceased’s estate, with very minor exceptions, in the same position as regards causes of action by or against the deceased as the deceased would have been if he or she had not died. However, it did not attempt to place the estate in the same position as regards the available remedies; as noted, certain kinds of losses are not compensable in an estate action and only actual pecuniary losses are recoverable. Moreover, the survival of actions legislation was not aimed specifically at the rights and interests of surviving family members in wrongful death cases. That subject had been addressed earlier by fatal injuries legislation. [97] The primary purpose of the Fatal Injuries Act was to put group of dependants, defined by that statute, in the same economic position (subject to the separate issue of collateral benefits) as they would have been in had the deceased lived and continued to provide support. [98] There is, of course, fundamental difference between claim for damages for loss of prospective earnings in survival of actions claim on one hand, and claims by living plaintiff or by dependants under the wrongful death statutes on the other. In the latter types of claims, the object of the award is to put the plaintiff (or his dependants if the plaintiff has been killed) in the position they would have been in, financially, had the accident not occurred i.e. had the plaintiff not been injured or killed and, therefore, continued to earn and support the dependants. This is not applicable reasoning in the case of claim by the estate for the deceased’s loss of prospective earnings. Such earnings would only have been received by the deceased had he or she not been killed, but the estate only takes the deceased’s assets upon death. The estate’s claim, therefore, is to an “asset” of the deceased which the estate could not get except upon the death of the deceased. It bears repeating that the claim asserted here is not for the amount by which the estate would have appreciated had the deceased not died prematurely and continued to earn. Rather, it is for something in the nature of capital asset which the estate could never acquire without the wrongful death. The Alberta Law Reform Institute notes in its report “Should Claim for the Loss of Chance of Future Earnings Survive Death” at p. 28: ... earning capacity is not something that the deceased person could dispose of while living or by will ... the destruction of the .. deceased person’s ability to earn will not reduce that deceased person’s heritable property and will not reduce the estate. [99] It is clear that the Nova Scotia Legislature intended to avoid some of the results which had flowed from judicial interpretation of the English survival statute. As noted earlier, the Nova Scotia Act specifically eliminated the claim for loss of expectation of life. Of course, as the context in which the Act was passed clearly demonstrates, no reasonably well informed lawyer in Nova Scotia in 1954 would have thought that claim for future earnings survived the deceased’s death. [100] The appellants referred us to the explanatory note to the Nova Scotia survival of actions Bill which accompanied its introduction in April of 1954. The note states that the Bill’s purpose was “... to provide for the survival of [personal] actions by or against the estate of deceased person.” This is hardly controversial. However, the note is somewhat misleading when it goes on to state that the Bill adopted, in substance, the English Act of 1934. As mentioned, the Nova Scotia legislation, unlike the English, excluded damages on account of loss of expectation of life and specifically limited survivor claims to actual pecuniary loss to the estate. The explanatory note is, therefore, of no help on the issue we face in this appeal. 4. Consequences of the Proposed Interpretation: [101] The appellants ask us to reach the same result as the House of Lords in Gammell. have already reviewed the extreme reluctance to reach that result which was expressed by the Law Lords in that case. Their remarks induce in me no enthusiasm to follow their example. They viewed the consequences of their decision as being neither sensible nor just. [102] Professor Waddams in his text The Law of Damages (Looseleaf edition, updated December 2001) describes the decision in Gammell (and, therefore, the results of following it) as having several far-reaching consequences: at para. 6.830. He describes them as follows: ... First, where the same persons are the beneficiaries of the estate and entitled to claim under Lord Campbell’s Act (as is usual)[i.e., the fatal injuries legislation], recovery under the Act was effectively superseded, for the estate’s recovery of the lost earning capacity will always equal or exceed the value of the lost dependency. second consequence is that tortfeasor who causes the death of an unmarried wage-earner has to pay much larger damages than formerly thought to be exigible, for the value of the lost earning capacity will be recoverable by the estate. Thirdly, if it should happen that the estate beneficiaries and the Lord Campbell’s Act claimants are different persons, there is real prospect of the defendant being made to pay twice over for the loss of the deceased’s earning capacity. (emphasis added) [103] The first and third of these consequences view as serious from the point of view of attempting to give effect to legislative purpose. These two consequences mean that the damages available under the Survival of Actions Act, depending on the facts, either supercede or duplicate those available under the Fatal Injuries Act, results which are not consistent with the legislative purpose of either Act. [104] What is really at stake here, as Professors Cooper-Stevenson and Saunders perceptively point out, is the question of which survivors of the deceased deserve protection, and to what extent, through an award to the estate: Personal Injuries Damages in Canada (1981) at 389. In my view, the Legislature spoke very specifically to this issue when it enacted the Fatal Injuries Act. Further, it has amended the provisions of that Act from time to time over the years to expand both the remedies and the group of persons who may make claims. It is hard to think that the Legislature’s purpose in enacting the Survival of Actions Act was to render the fatal injuries scheme either irrelevant or duplicative of other remedies depending on the facts of the particular case. Yet this would be the consequence of the appellants’ interpretation. The Fatal Injuries Act may well not achieve what many will think to be just result in all cases, but it does represent clear and considered legislative judgment about which survivors of person wrongfully killed should be compensated and on what terms. 5. Rules of Interpretation: [105] Only one special rule of interpretation is implicated in this case. It is embodied in section 9(5) of the Interpretation Act and requires that every enactment be considered remedial and interpreted to insure the attainment of its objects. This rule, however, is not directed to giving the statute the most favourable interpretation possible to permit recovery, but to giving an interpretation that will ensure the attainment of the statute’s objects. In my view, this rule is fully complied with through the detailed contextual analysis which am undertaking in this case. 6. Conclusions concerning context, purpose and consequences: [106] In my opinion, neither the context in which the Survival of Actions Act was enacted nor its purpose provides support for the interpretation advanced by the appellants. Where death ensues from an injury wrongfully inflicted (as is alleged in this case), the appellants’ interpretation would effectively give potentially duplicative remedies to two groups of people for the wrongful death. The estate would recover for the beneficiaries under the survival legislation and the dependants would recover under the fatal injuries legislation. However, the Legislature specifically addressed the question of how losses of survivors should be compensated in wrongful death cases when it enacted the Fatal Injuries Act. It was not the purpose of the survival legislation either to duplicate or supercede that recovery. [107] turn next to consider whether the appellants’ interpretation is plausible, efficacious and acceptable. 7. The Appropriate Interpretation (i) Is the appellants’ interpretation plausible? [108] The question here is whether the appellants’ interpretation is plausible in the sense that it complies with the text of the Act. In my view, it is not. [109] The issue is whether claim for deceased person’s loss of prospective income relates to “an actual pecuniary loss to the estate.” [110] should say at the outset that in looking for “plausible” interpretation, one is looking for the most plausible interpretation in light of the words used by the legislation judged in their full context. The phrase “actual pecuniary loss to the estate’ is, as matter of dictionary definition, reasonably capable of bearing the meaning the appellants advance. However, do not think that their position that the deceased’s lost earning capacity is an ‘actual pecuniary loss to the estate’ is the most plausible of the possible meanings which the words may reasonably bear. [111] There is no dispute here that the lost earning capacity is pecuniary loss; it is loss ‘of, concerning or consisting of’ money. The focus of debate, therefore, is whether this pecuniary loss is ‘actual’ and ‘to the estate’. [112] The appellants submit that the word “actual” may be used in the sense of “real” and that loss may be real even though it is prospective: see Duncan v. Baddeley (1997), 1997 CanLII 11516 (AB CA), 145 D.L.R. (4th) 708 (Alta. C.A.). Kerans, J.A. opined in that case that the exclusion of losses other than those which are ‘an actual financial loss’ is meant “... to rid the surviving action of any claim that is notional or fictive (e.g. punitive and exemplary damages) or that is for non-pecuniary loss.” (at 712). However, in applying this reasoning to Nova Scotia’s legislation, two difficulties arise. [113] First, that interpretation makes the phrase “actual pecuniary loss to the estate” superfluous. Punitive damages and damages for pain and suffering and loss of enjoyment of life are expressly excluded by specific language in the Nova Scotia legislation: see ss. 4(a), (b), (c). It follows that if the phrase ‘actual pecuniary loss to the estate’ is meant only to exclude exemplary and non-pecuniary damages, it adds nothing to the specific exclusions of these matters. [114] Second, this interpretation, in the context of the Nova Scotia Act, makes the word “actual” redundant. If all that was intended was to exclude non-pecuniary losses, why add the word ‘actual’ to modify the word ‘pecuniary’? pecuniary loss is, by definition, not non-pecuniary loss, so limitation of recovery to pecuniary loss would have excluded recovery for non-pecuniary losses. [115] With all due respect, it seems to me to be poor definition of phrase that renders it redundant and an even poorer definition of word that renders it meaningless. Yet these are the consequences if the reasoning of Duncan v. Baddeley is applied to the wording of the Nova Scotia survival statute. [116] think more plausible interpretation results from paying attention to the legal parlance surrounding claims for lost earning capacity. Such claims, while relating to “real” losses, have always been treated as an element of the general damages award because they are not capable of precise calculation. Such claims have been recognized as relating to the loss of potential or of prospective earnings. The use of the word ‘actual’ to describe such losses while perhaps not completely implausible strikes me as, at best, curious choice of words. [117] Moreover, think the word actual must be considered as part of the phrase “actual loss ... to the estate.” Under the Nova Scotia Act (unlike the Alberta statute considered in Duncan) the claim must relate to an actual loss to the estate. As MacDonald, A.C.J.S.C. noted in his reasons in the present case, the Alberta legislation is differently worded than the Nova Scotian legislation. In Alberta, the legislation specifies that “... only those damages that resulted in actual financial loss to the deceased or his estate are recoverable ...”: Survival of Actions Act, R.S.A. 1980, c. 30 s. 5. [118] In Duncan, Kerans, J.A. (Coté, J.A. concurring) held that the deceased’s loss of earning capacity is an actual loss to the deceased but not an actual loss to the estate: at page 716. The context in which they reached this conclusion was consideration of s. of the Alberta statute. That section states that, in assessing damages, gains or loss to the estate as result of the death are to be excluded. Kerans, J.A. (with Coté, J.A. concurring) reasoned that this clause would extinguish the loss of earnings claim if it were pecuniary loss to the estate. However, they concluded that the loss was in fact loss to the deceased, not to the estate. [119] In light of the way claims for lost earning capacity have been characterized in personal injury cases, think more plausible interpretation is to say that the phrase “actual pecuniary loss to the estate”, in the context of damages for personal injury and death, refers to more precisely quantifiable claims and excludes general damages. This approach commended itself to majority of the Alberta Court of Appeal in James v. Rentz (1986), 1986 ABCA 95 (CanLII), 27 D.L.R. (4th) 724. In that case, Sevenson, J.A. (as he then was) expressed the view that the limitation of recovery to “actual financial loss to the deceased or his estate” in the Alberta survival legislation was intended to distinguish “... between quantified economic loss in the nature of special damages and general damages. The term “actual” serve[d] to exclude possible or contingent claims.” (at p. 726) (emphasis added) [120] In considering the plausibility of the appellants’ interpretation, it is worth repeating the reasoning which they advance to support the claim that the deceased’s loss of prospective earnings is an ‘actual ... loss to the estate’. It is this. The lost earning capacity is capital asset which is destroyed in the instant before the deceased’s death. The deceased, therefore, dies having suffered this loss. The right to claim this lost capital asset therefore passes to the estate and its loss is, therefore, loss to the estate. This almost metaphysical line of reasoning may be good logic. But to describe this prospective asset, which is notionally lost in the instant before death, as an “actual” loss seems to me to push the language beyond its plausible meaning. [121] conclude, therefore, that the appellants’ interpretation of the phrase “actual pecuniary loss to the estate” so that it refers to the deceased’s loss of future earnings is not plausible in the sense that it is not the most plausible interpretation in light of the full context in which words are employed. (ii) Is the appellants’ interpretation efficacious? [122] The question here is what interpretation of the legislation would best give effect to the Legislature’s purpose. In my view, holding that the estate’s claim for the deceased’s loss of prospective earnings is not ‘an actual pecuniary loss to the estate’ would best serve the legislative purpose of both the survival legislation and the wrongful death statute. [123] will briefly reiterate the purposes of the legislation which have discussed earlier. The primary purpose of the survival of actions legislation is to provide for the general survival of causes of action that arise during the deceased’s life both for and against the deceased’s estate, but not to preserve claims to all heads of damage. There are, as noted earlier, several restrictions on the types of losses which may be compensated in survival action. The primary purpose of the fatal injury legislation is to provide compensation to dependants for the loss of prospective support which they could reasonably expect to have received from the deceased had death not occurred as the result of wrongful act. While the scheme created by these two pieces of legislation may be far from perfect and does, on occasion, give rise to questions of overlap and duplication, and perhaps leave some gaps, it is generally coherent scheme in the vast majority of cases. [124] The award of damages for loss of prospective earnings to the estate in survival action would substantially undermine this coherence and, as noted earlier, give rise to new and very significant issues of overlap and duplication. [125] The comments by the Law Lords in Gammell are instructive. The House of Lords felt that adopting the interpretation urged on us in this appeal led to result that was neither “sensible nor just”, which had no “social, moral or logical justification”, which showed that the law had “gone astray by excessive refinement of theory.” While, of course, we must respect the text of the legislation, we should be slow to conclude the Legislature’s purpose was to achieve such results. (iii) Is appellants’ interpretation acceptable? [126] The question here is which interpretation produces result which is reasonable and just. The appellants have one main point on this issue which may be expressed in two ways. [127] First, the appellants submit that the same rule of recovery for the lost years should apply in survival actions as in personal injury actions. This argument is straightforward and has superficial logical appeal. The law is clear in personal injury cases that the loss of prospective earnings is recoverable head of loss. It is also now clear in both England and in Canada that damages for the prospective loss of earnings in personal injury cases are awarded for the period of the pre-accident life expectancy; i.e., an award is made which includes compensation for the “lost years”. The appellants submit that this claim survives for the benefit of the estate. All causes of action survive under that legislation unless specifically excluded and the loss of earning capacity is, therefore, compensated provided it is an actual pecuniary loss to the estate. The appellants say that there is no exclusion of this claim and that the loss of the deceased’s earning capacity is an “actual pecuniary loss to the estate”. [128] One of the underpinnings of this argument is the view that similar rules of damages must apply to both fatal injury and survival of actions cases. This position was expressed in Oliver v. Ashman where Holroyd Pearce, L.J. said that there is “... no room for distinguishing between claim brought by living plaintiff and claim brought on behalf of dead plaintiff in respect of the loss of earnings during the years of which he has been deprived.” Whatever the merits of that proposition may have been on the state of authorities which confronted the Court in Oliver, it is not, with respect, sound approach to the interpretation of Nova Scotia’s Survival of Actions Act. [129] respectfully adopt the view expressed by Professors Cooper-Stevenson and Saunders in the first edition of their text, Personal Injury Damages in Canada (1981) with respect to this line of argument: ... Inasmuch as living plaintiff receives damages according to his pre-accident life expectancy, so should his estate. But policy-wise this analysis is much too simplistic. It obscures the fundamental question which is not theoretical symmetry but how to unravel the competing interests of survivors with stake in the deceased’s life. In other words, given that damages can be of no practical value to the deceased, which if any of his survivors deserve protection from the wrongdoer through an award to the estate? (emphasis added) [130] For reasons of history and policy, claims by living persons have been treated differently, both under the common law and by statute, from claims on behalf of deceased persons. Historically, at common law, living person could sue in tort, but his or her personal representatives could not assert that cause of action after the person’s death. While, as practical matter, the estate of deceased person would ultimately benefit from damages award made to that person during his or her lifetime, the estate had no claim if the deceased died before recovering judgment on the cause of action. While those dependant on person during life would seem to have strong claim for recovery against wrongdoer who kills that person and thereby takes away the support which he or she provided, no such claim was recognized by the common law. So, as matter of the legal history of this package of rules, there is no reason to think that claims brought by living persons and those asserted by their personal representatives after death should be treated identically. [131] The progress of statutory reforms is also consistent with this view. It is worth remembering that the common law rule against recovery by dependents for wrongful death was the first of these rules to be reformed. Fatal injuries legislation created new, but limited statutory cause of action for wrongful death in favour of those dependant on the deceased. Their claim, expressed simply, was for the support they could have expected to receive out of the earnings the deceased could have expected to make had he or she lived. To the extent that the estate would benefit those who were not dependants under the fatal injuries legislation, the estate had no claim for the wrongful death. [132] As pointed out in Keizer v. Hanna, 1978 CanLII 28 (SCC), [1978] S.C.R. 342, the method of calculating the amount of damage award under the fatal injuries legislation is similar to that used in calculating the amount of an award for loss of future earnings in cases of serious personal injury: at 352. However, the majority of the Court held in Keizer that the question of whether the award should be reduced to reflect the obligation to pay income tax should be answered differently in fatal injury cases than it would be in personal injury actions by living plaintiffs. In personal injury cases, the loss of prospective earnings is considered something in the nature of capital asset and therefore should not be reduced on account of taxation. However, fatal injury award represents the loss of stream of income to the dependant that could only be paid out of the deceased’s after tax income. Dickson, J. explained this distinction in Andrews v. Grand Toy, 1978 CanLII (SCC), [1978] S.C.R. 229 at 259: (ii) Allowance for tax: In The Queen v. Jennings, supra, this Court held that an award for prospective income should be calculated with no deduction for tax which might have been attracted had it been earned over the working life of the plaintiff. This results from the fact that it is earning capacity and not lost earnings which is the subject of compensation. For the same reason, no consideration should be taken of the amount by which the income from the award will be reduced by payment of taxes on the interest, dividends, or capital gain. capital sum is appropriate to replace the lost capital asset of earning capacity. Tax on income is irrelevant either to decrease the sum for taxes the victim would have paid on income from his job, or to increase it for taxes he will now have to pay on income from the award. In contrast with the situation in personal injury cases, awards under the Fatal Accident Acts should reflect tax considerations, since they are to compensate dependants for the loss of support payments made by the deceased. These support payments could only come out of take-home pay, and the payments from the award will only be received net of taxes: see the contemporaneous decision of this Court in Keizer v. Hanna and Much. [133] The symmetry which the appellants assert ought to exist did not exist in the old common law rules, was not adopted by the reforming statutes and does not obtain as regards the allowance for taxation in the two types of damage calculations. [134] Judges and scholars have recognized that different rules may be appropriate for claims by living plaintiffs and those by the estate of deceased persons. In Oliver itself, Holroyd Pearce L.J. commented that although the law compelled him to do otherwise, there were good reasons for compensating for the lost years in claim by living plaintiff and not doing so in survival of actions case: at 228. Comments by the great torts scholar Professor Jolowicz are to the same effect: see Note, [1960] Cambridge Law Journal 160 at 225. [135] The second aspect of the appellants’ point is that it is only just that the estate recover what would have been received by the deceased had he lived to pursue his claim. However, the question of what is acceptable and just in this case is essentially one of policy which has many aspects and with respect to which reasonable people may reasonably differ. comparison of the majority and minority judgments in Duncan v. Baddeley and consideration of the Alberta Law Reform Institute’s Report in response to that case provide good introduction to the range of questions that must be answered in trying to determine what is just in this context. [136] On one hand, it is suggested that rule barring recovery of the deceased’s future loss of income in survival action allows wrongdoer to escape “scot free” and makes it cheaper for the wrongdoer to kill than to injure. On the other, it is asserted that awards should be compensatory, not punitive, and that claim for the deceased’s loss of prospective earnings is for something which is unacceptably speculative. Whatever one thinks of these and the many other arguments which are made on this subject, we must remember that this case is not about what the best rule for compensation in wrongful death cases might be. It is about determining what rule the Legislature has adopted. [137] In my view, the legislative judgment about the issue we face in this case is clear. The context of the legislation, its purpose and its text all support the conclusion, in my view, that the deceased’s loss of prospective earnings is not an “actual pecuniary loss to the estate” and is therefore not recoverable in a Survival of Actions Act claim. [138] In light of that conclusion, do not need to address the respondent’s submission that such an award is precluded by the Act’s exclusion of damages for loss of expectation of life. IV. Disposition: [139] For these reasons, I would dismiss the appeal. At the hearing, the parties indicated that they had agreed on costs and that we need make no order in that regard. Cromwell, J.A. Concurred in: Hallett, J.A. Hamilton, J.A.

A fifteen year old died in a motor vehicle accident. The estate brought a claim for loss of future income and lost earning capacity. The Chambers judge found that such a claim was not available and the estate appealed. Appeal dismissed; the context of the legislation, its purpose and text all support the conclusion that the deceased's loss of prospective earnings is not an actual pecuniary loss to the estate.

b_2002nsca30.txt

J. Q.B.G. A.D. 1997 No. 1294 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ERNIE RICHTER RESPONDENT (PLAINTIFF) and DEBBIE ZIMMERMANN APPLICANT (DEFENDANT) James T. Sproule for the applicant Connie den Hollander for the respondent FIAT LAING J. November 12, 1997 The applicant applies for an order for the followingrelief:(a) pursuant to s. 63 of The PersonalProperty Security Act (Saskatchewan) for adeclaration that the agreement between theparties is a security agreement within thedefinition of The Personal PropertySecurity Act; and(b) pursuant to s. 18 of The Limitation ofCivil Rights Act that the Respondentvendor is limited to a lien upon thearticle sold;(c) an Order that funds currently held inCourt in trust for the action be returnedto Debbie Zimmerman (sic). On the following grounds: (a) that the agreement between the parties on the facts constitutes security agreement and is not true lease; (b) that because the agreement is security agreement and not true lease, pursuant to s. 18 of The Limitation of Civil Rights Act, the Respondent vendor is limited to lien upon the articles sold only, notwithstanding any contrary agreement between the parties. The parties entered into an agreement in early 1997 in which the respondent as lessor agreed to lease tractor- trailer unit to the applicant for the payments specified therein. The applicant made payments for several months and acknowledges in her affidavit that by the month of June, 1997, she was in default with respect to such payments. The respondent seized the vehicle on July 3, 1997. The same date, the respondent issued statement of claim in which he claimed the sum of $5,330.81 from the applicant being ". the combined amount due and owing by the Defendant to the Plaintiff for arrears of lease payments with the value of goods required to be purchased by the Plaintiff pursuant to the said agreement being tires and starter which the Defendant did promise to pay to the Plaintiff upon repossession .". The respondent also issued pre- judgment garnishee summons for the amount claimed which was paid into court by the garnishee on July 22, 1997. The applicant has not yet filed statement of defence to this claim. As noted from the relief requested in the motion, the applicant is not taking issue with the repossession effected by the respondent, but rather is seeking ruling that the respondent, having repossessed the collateral, is not now entitled to claim any additional payments owing from the applicant. At the hearing, both parties argued the merits of the application. Counsel for the respondent took the position the lease was "true" lease as opposed to "security" lease, denied the applicability of s. 18(1) of The Limitation of Civil Rights Act, R.S.S. 1978, c. L-16, and stated that in any event her client wished to invoke the provisions of s. 18(6) of the Act and argue it would be inequitable that s. 18(1) should apply. The respondent did not take issue with the procedural aspects of this application. Having had the benefit of reflection and of reviewing the Act since this matter was argued, conclude this application is misconceived. This court lacksjurisdiction to grant the relief requested under Part V of ThePersonal Property Security Act, 1993, S.S. 1993, c. P-6.2 andthe application is simply an attempt to end run the actionwhich has been commenced by the respondent. As noted by Vancise J.A. in Andrews and Trotchie v. Mack Financial (Canada) Ltd. et al. (1988), 1987 CanLII 4731 (SK CA), 61 Sask. R. 311, at pp. 315-316: It will be noted that the court is given broad powers under s. 63, including the right to make declarations of rights, grant injunctive relief, or make any order required to ensure compliance with Part and s. 17 of the Act. (original emphasis) And at p. 318: On the issue of the scope of s. 63, the appellant submits that the purpose of the section is to ensure compliance with Part V, and to provide summary procedure for ensuring that the rights of the respective parties are protected, and, to that end, the rights of the respective parties are circumscribed. agree with that submission. In this matter, the applicant is not seeking toremedy a wrong with respect to the seizure or preservation ofthe collateral, but is in reality seeking a remedy pursuant toThe Limitation of Civil Rights Act, supra. The applicant is of the view, that if she can establish that the lease in question created security interest within the meaning of s. of The Personal Property Security Act, 1993 this will advance her argument with respect to the applicability of s. 18(1) of The Limitation of Civil Rights Act. This may or may not be the case, but it does not change the fact that the argument will have to be based on the wording of s. 18(1) of The Limitation of Civil Rights Act. Section 63(2) of The Personal Property Security Act, 1993 states as follows: 63(2) On application by debtor, creditor of debtor, secured party, sheriff or person with an interest in the collateral, the court may make one or more of the following orders: (a) an order, including binding declaration of right and an order for injunctive relief, that is necessary to ensure compliance with this Part or section 17, 36, 37 or 38; (b) an order giving directions to any person regarding the exercise of rights or the discharge of obligations pursuant to this Part or section 17, 36, 37 or 38; (c) an order relieving person from compliance with the requirements of this Part or section 17, 36, 37 or 38; (d) an order staying enforcement of rights provided in this Part or section 17, 36, 37 or 38 or (e) any order that is necessary to ensure protection of the interest of any person in the collateral. (subsection emphasis added) The relief sought by the applicant does not fallwithin any of the wording of the foregoing section, and thereis therefore no jurisdiction in this court to grant the reliefrequested. The proper forum to have the issues raised in thismatter determined, is the action commenced by the respondent. The application is dismissed. Costs of this application will be costs in the cause.

FIAT. The applicant sought an order pursuant to s63 of the Personal Property Security Act (PPSA) declaring that the agreement between the parties was a security agreement within the definition of the Personal Property Security Act rather than a lease and that the respondent was limited to a lien pursuant to s18 of the Limitation of Civil Rights Act; and an order that funds paid into court pursuant to a pre-judgment garnishee summons be returned to the applicant. The respondent seized the vehicle and issued a statement of claim for $5,330.81 as arrears of lease payments. The applicant had made payments for several months and acknowledged that she was in default on the payments for the tractor-trailer unit but contended the agreement was not a lease and that the respondent, having repossessed the collateral, was not now entitled to claim any additional payments. HELD: The application was dismissed. Costs in the cause. 1)The relief sought did not fall within any of the wording of s63(2) of the Personal Property Security Act and therefore there was no jurisdiction to grant the relief requested. The application was simply an attempt to end run the action commenced by the respondent. 2)The applicant was not seeking to remedy a wrong with respect to the seizure or preservation of the collateral but was seeking a remedy pursuant to the Limitations of Civil Rights Act. The proper forum was to have the issues determined in the action commenced by the respondent.

c_1997canlii11354.txt

J. This fiat is subject to an Order pursuant to s. 486(3) of the Criminal Code that there be no publication of the complainant's name or of any evidence that would identify the complainant in any media. Q.B.CR.N.J. A.D. 1995 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: HER MAJESTY THE QUEEN G. D. I.J. Cardinal for the Crown R.T. McCann for the accused JUDGMENT (ORAL) BAYNTON J. September 27, 1995 The accused is charged with sexually assaulting thecomplainant between the dates of October 22, 1986 and March31, 1988 at Beardy's Indian Reserve. The accused was born on October 22, 1968 so that he ceased to be "young person" within the meaning of the Young Offenders Act, R.S.C. 1985, c. Y-1, on the first date specified in the indictment. The Issue The sole issue before me is whether it has been proven beyond reasonable doubt that the sexual assaults alleged occurred on or after October 22, 1986, the date that the accused became an adult. The determination of the specific dates of multiple sexual assaults of children over period of time is not usually of critical importance, but it is in this rather unique case. Under s. of the Young Offenders Act, Youth Court Judges have exclusive jurisdiction respecting offences committed by persons while under the age of 18 years. The Court of Queen's Bench accordingly has jurisdiction only when such matter is transferred to it pursuant to s. of the Act. The case before me has not come to me by way of transfer from the Youth Court. concurrent proceeding respecting these same events is pending in Youth Court. The Facts Neither the complainant nor the accused are particularly credible as witnesses, each having been convicted of numerous criminal offences involving deceit, dishonesty, and disrespect for the law. Each has spent considerable amount of their young lives in jail. found the complainant to be more credible witness than the accused. She did not attempt to embellish or exaggerate her testimony even though she had the opportunity to do so. She is now 19 years of age. She had child shortly after she turned 14 years of age from more recent abusive relationship and is now trying to come to grips with what was done to her during her childhood. The accused is now 26 years of age and has two children. He quite frankly admitted that he had attempted to have sexual intercourse with the complainant when she was or 9, but that he was not able to perform the act. He claims that he was under 14 at that time and that he subsequently moved from the Beardy's Indian Reserve to Prince Albert while he was still young person and had no further contact with the complainant. He accordingly acknowledges that he sexually assaulted the complainant on that one occasion but claims it occurred long before he became an adult. He characterizes the incident as attempted intercourse during youthful experimentation. He also denies any subsequent acts of improper touching. found the accused's testimony to be largely self- serving. have carefully considered the exhortation in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.R. 742 in concluding that his version of the events could not reasonably be true. Nor did his testimony leave me with any reasonable doubt that he had forced sexual intercourse with the complainant in the fashion she described and that he touched her on her vagina on one or two subsequent occasions. There is however no convincing evidence before me that any of the incidents of sexual assault committed by the accused occurred on or after October 22, 1986, the date he became an adult. The complainant's evidence is clear that the sexual intercourse took place while she was 9. She turned 10 on February 5, 1986, and was almost 11 on the first date specified in the indictment. Although the one or two incidents of improper touching took place after the sexual intercourse incident, she quite frankly admitted that she could not remember her age or grade in school when those incidents occurred. All she could remember was that the touching had stopped when she was 11. The age of 11 had significance to her only because this was her age when she moved from Beardy's Indian Reserve to Saskatoon. Jurisdiction As I do not have jurisdiction over any sexualassaults committed by the accused while he was a young person,the Crown quite properly declined to ask for an amendment ofthe dates specified in the indictment to conform to theevidence. Although I am satisfied beyond a reasonable doubtthat the accused sexually assaulted the complainant betweenthe dates of February 5, 1985 to February 4, 1986, I am notsatisfied that he did so as charged after he become an adulton the 22nd day of October, 1986. One or two of the incidents of touching might have occurred after this October 22, 1986 date, but such finding would be based more on conjecture than on proven fact. The accused is acquitted of the charge in theindictment.

The accused was charged with sexual assault and was tried in the Court of Queen's Bench. The evidence at trial indicated that the alleged acts had occurred prior to the accused becoming an adult. He had not been ordered transferred into adult court under s.16 of The Young Offenders Act. HELD: Accused acquitted. 1)The Judge was satisfied beyond a reasonable doubt that the accused had sexually assaulted the complainant. 2)Because the complainant's evidence suggested that the assault occurred while the accused was a young offender the Judge concluded that the Court of Queen's Bench was without jurisdiction in the matter.

c_1995canlii5987.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 145 Date: July 23, 2014 File: 76/12 Location: Moose Jaw Between: Nancy Sykes and Tom Sykes and John Labuick Self-Represented For the Applicants (Defendants) Self-Represented For the Respondent (Plaintiff) JUDGMENT M. GORDON, [1] John Labuick sues Nancy and Tom Sykes in an amended claim that was issued the 30th of August 2012. In turn each side brought an application to have the opposing parties’ counsel disqualified. Both applications were successful and therefore the parties are currently self-represented. case management conference pursuant to The Small Claims Act was conducted and adjourned to be continued in front of Judge Kovatch on October 1, 2013. At that time the Sykes indicated they were going to be making an application to have portions of the action of Mr. Labuick struck. In fact the Sykes did file notice of motion dated September 18, 2013 asking for this relief. hearing date was set for June 17, 2014 and this decision comes as result of that hearing. [2] am satisfied that the Sykes’ application is based on the following grounds: 1) that the Labuick claim is frivolous or vexatious and that he has no legal right to bring the application; and 2) that the Labuick claim does not disclose reasonable cause of action. [3] Mr. Labuick defends this application stating he has legitimate cause of action. He states that part of his action is based on overhanging trees from the Sykes’ yard into his yard and as result, he has suffered damages and should be compensated. [4] The case law is clear that both the above noted remedies should be used sparingly. Litigants have the right for proper claim to be heard. There is difference in proof for each type of application. In determining whether claim is frivolous or vexatious, the Court can consider the merits of the claim and the adequacy of the claim. In determining whether the claim discloses no reasonable cause of action, the Court only needs to consider adequacy. This is illustrated in Custom Cycle v. Honda Canada, 2007 SKQB 427 (CanLII). [5] This claim of Mr. Labuick raises the issue of whether this is case involving the law of private nuisance. Private nuisance is generally described as unreasonable interference with an occupier’s use and enjoyment of their land (see St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64 (CanLII)). At paragraph 77, the Court stated: At common law, nuisance is field of liability that focuses on the harm suffered rather than on prohibited conduct (A. M. Linden and B. Feldthusen, Canadian Tort Law (8th ed. 2006), at p. 559; L. N. Klar, Tort Law (2nd ed. 1996), at p. 535). Nuisance is defined as unreasonable interference with the use of land (Linden and Feldthusen, at p. 559; Klar, at p. 535). Whether the interference results from intentional, negligent or non-faulty conduct is of no consequence provided that the harm can be characterized as nuisance (Linden and Feldthusen, at p. 559). The interference must be intolerable to an ordinary person (p. 568). This is assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the plaintiff’s use and the utility of the activity (p. 569). The interference must be substantial, which means that compensation will not be awarded for trivial annoyances (Linden and Feldthusen, at p. 569; Klar, at p. 536). [6] The tort of nuisance has been considered by various courts in the context of trees. In Pook v. Rowswell, 2005 SKPC 110 (CanLII), Judge Meekma held that an overhanging tree can constitute private nuisance but any liability would require causation in damages (paras. 14 to 16). In Pook, the plaintiff was not successful in proving causation because there was no evidence that the tree was ever in contact with the shed in damaging way. [7] In Wallace v. Joughin, 2014 BCPC (CanLII), one of the plaintiff’s claims was for nuisance in that the defendant’s trees grew in the plaintiff’s air space and that debris from those trees landed in the plaintiff’s yard and that the trees blocked the natural light. [8] The plaintiff testified that branches up to three feet long had broken off the tree and damaged her house during wind storm and that fir needles, cones and small branches resulted in extra maintenance to the yard and reduced the life span of various items such as an art studio roof, wire fence and gutters. The defendant argued that the trees “are part of the natural characteristic” of the neighbourhood predating the plaintiff’s purchase of the property and that “having regard for the requisite elements and considerations to be applied ... the claimant has not been able to demonstrate that the fir trees amount to nuisance”. It is noted there was significant amount of evidence from expert reports relating to fir tree growth patterns and the effect it can have on one’s health. The Court held at paragraphs 240 and 241: [240] Objectively, one who chooses to live in semi-rural environment where there are significant number of trees must expect to have both the benefits and advantages of those trees and some of the minor inconveniences that naturally accompany them. Those minor inconveniences will include blowing fallen maple leaves in the fall, blossoming Japanese cherry trees in the spring and the year round rain of needles from the coniferous trees, many of which may end up in the house gutters. It will even include disruption of personal goal to achieve perfect lawn because of its natural incompatibility with the surrounding trees. [241] Taking into account all of the Sutherland elements and considerations as they relate to this case and the Claimant’s proffered complaints, my conclusion is that the Claimant has failed to establish what can be regarded as nuisance, that is “an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions.” [9] In another case called Yates v. Fedirchuk, 2011 ONSC 5549 (CanLII), the plaintiff claimed damages in nuisance for root damage from the neighbour’s tree to her pool. Ordering that the trees be felled was found to be “contrary to the norms that believe generally govern neighbourhood relations in Ottawa in the 21st century” the judge held. The Court also quoted the Supreme Court of Canada case of 114957 Canada Ltee. v. Hudson, 2001 SCC 40 (CanLII), [2001] S.C.R. 241 at paragraph 1, that held environmental protection is fundamental value in Canadian society. [10] As result of reviewing the principles enunciated in these cases, conclude that nuisance claims relating to trees result in damages where the effects are outside whatever is reasonably expected based on community standards. As rule damages are awarded where roots damage property or where tree branches harm property either by falling onto it, breaking it or hanging over it and causing damage. Damages are not awarded for trivial or minor interference which is in keeping with community expectations unless special circumstances justify it. For example, in Olah v. Cadillac Fairview Corp., [1990] S.J. No. 344, the plaintiff sued for interference with the use and enjoyment of their home because dust and dirt blew onto their yard. This would not normally be nuisance but in this particular case it was, as it was substantially larger than normal being from shopping mall with large block of land between the plaintiff’s home and the mall. [11] Mr. Labuick’s claim as stated in his amended claim involves two areas of concern: 1) seed pods, fuzz and other debris fall from the trees in significant amounts during the summer months from the defendant’s trees; and 2) branches from the defendant’s trees grow over the property line and intrude into the Labuick space. [12] Mr. Labuick says as result of these two problems, he has had to do more cleaning and maintenance than would otherwise be required and that debris from large overhanging trees has caused the filtration system in his pool to be clogged lowering its life span and increasing service requirements and he further goes on to say that debris from the trees generally have damaged his three air conditioning units which also required increased service and maintenance. [13] In the June 17, 2014 hearing of this application, Mr. Labuick also alleged that one of the air conditioners had burnt out because it was plugged with fuzz from the defendant’s trees. [14] The Sykes argued that the pleadings should be struck. Their main argument it appears to be is that the claim is frivolous or vexatious although in paragraph of their dispute note they ask that the plaintiff’s claim be struck as there is no reasonable likelihood of success under the tort of nuisance. There is also other references in their documentation such as “unwarranted court claim” and “damage to anything is hardly an issue”. Therefore given the fact that the Sykes are the applicants in this application and are self-represented litigants, am going to consider both requests. [15] summary of the Sykes’ argument is as follows: (1) The community expects that debris from trees will blow onto other yards. The Sykes claim the trees in question are well-established and were there when they purchased the house in 1988. (2) The community plan for Moose Jaw supports urban trees and that their particular neighbourhood is generally in favour of them. (3) It is known and accepted that debris from trees will be picked up by the wind. (4) There are many other trees within the residential area so it is impossible to demonstrate that the debris that Mr. Labuick complains about is from the Sykes’ trees only. (5) There could be other reasons for the damage to the pool filter such as grass clippings, overuse, shedding dogs and the trees in the Labuicks’ yard. (6) Any damage to the air conditioning unit is overstated and could equally be due to overuse. [16] The Sykes say at this time there is no overhanging trees onto the Labuick property. The Sykes say there was branch hanging approximately 30 feet up but it was trimmed back in May of this year. [17] The law is clear that any overhanging trees or branches could constitute private nuisance. Whether damages can be claimed or would be awarded for this is question to be proven and decided at trial. [18] I am prepared to strike the portion of the Labuick claim with respect to damages from debris falling from the Sykes’ property onto the Labuick property. Even if Mr. Labuick could prove that the debris in his yard is solely from the Sykes’ trees, this would not be sufficient. am prepared to take judicial notice of the fact that communities such as Moose Jaw have trees, wind blows and blows all sorts of debris into other people’s yards. This is something people are expected to live with. It is part of urban life. There is nothing in the pleadings to suggest that the burden on Mr. Labuick is greater than expected for the community he lives in. The issue is there is no remedy even if were to accept that Mr. Labuick proved the fluff or debris in his pool was solely from the Sykes’ trees. [19] am also prepared to strike this aspect of the claim on the grounds it is frivolous and vexatious when considering the merits in the context of community standards. [20] Mr. Labuick has also asked for injunctive relief. Under s. of The Small Claims Act, the jurisdiction of the Court is specifically set out as follows: 3(1) Subject to subsection (7), this Act applies, whether or not the Crown is party to the action, to any claim or counterclaim for: (a) debt or damages; (b) recovery of personal property; (c) specific performance or rescission of an agreement relating to personal property or services; or (d) relief from opposing claims to personal property. (2) Subject to subsections (3), (4) and (7) but notwithstanding clause 2(o) of The Saskatchewan Insurance Act, actions by or against an insurer may be brought pursuant to this Act in any situation where there is disagreement between the insured and the insurer. (3) If the contract of insurance or The Saskatchewan Insurance Act requires an appraisal before there can be any recovery, the procedures for an appraisal set out in the contract or The Saskatchewan Insurance Act, including, where applicable, submission to an umpire, must be completed before an action may be brought. (4) If the contract of insurance or The Saskatchewan Insurance Act allows but does not require an appraisal, an action may be brought whether or not the procedures for an appraisal set out in the contract or The Saskatchewan Insurance Act have been completed. (5) For the purposes of subsection (3), “requires an appraisal” includes situation in which contract of insurance or The Saskatchewan Insurance Act provides an insured or an insurer with the right to require an appraisal and the insured or insurer has exercised that right. (6) Subject to subsection (7) but notwithstanding section 61 of The Automobile Accident Insurance Act, an action to recover benefits or insurance money may be brought pursuant to this Act. (7) The maximum amount that may be claimed or the maximum value of the personal property or services with respect to which relief may be sought is the amount prescribed as the monetary limit. (8) In determining whether claim or counterclaim exceeds the monetary limit, the amount or value is to be calculated without taking into consideration interest or costs. (9) This Act does not apply to claim for libel, slander, malicious arrest, malicious prosecution or false imprisonment. [21] Section 9(1) of The Queen’s Bench Act R.S.S. 1998, c.S-7 states: 9(1) The court has original jurisdiction throughout Saskatchewan, with full power and authority to consider, hear, try and determine actions and matters. [22] Section 65 of The Queen’s Bench Act refers to the granting of injunctive relief. In Northern Light Arabians v. Sapergia, 2011 SKPC 151 (CanLII), the Court held that an injunction ordering that fence be built was “beyond the authority of this Court” (para. 39). [23] Therefore I am prepared to strike out the request that an injunction be issued ordering the trees be removed. This is clearly a remedy this Court has no jurisdiction to grant. [24] In summary, the Labuick amended claim can proceed to trial which will be limited to the claim for damages from any overhanging trees from the Sykes’ property onto the Labuick property and whether these trees invade the Labuick air space. Whether there are branches overhanging into Labuick’s yard is triable issue and if Labuick is successful, monetary damages can be awarded. [25] Therefore the matter will be adjourned to resume the case management conference in front of Judge Kovatch on October 2, 2014 at 10:30 a.m. Costs shall remain for the trial judge.

The Court allowed the application in part. It struck the portion of the claim with respect to damages from debris falling from the defendants’ tree. Even if proven, the damages were part of urban life. The plaintiff claimed for injunctive relief ordering the trees to be removed. The Court had no jurisdiction to grant this relief. The amended claim could proceed limited to the claim for damages from any overhanging trees into the plaintiff’s property and whether the trees invaded the plaintiff’s air space.

d_2014skpc145.txt

D.P. Ball QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 337 Date: 2007 09 21 Docket: Q.B.A. No. of 2007 Judicial Centre: PRINCE ALBERT BETWEEN: SEAN PHILLIP FLEURY and HER MAJESTY THE QUEEN Counsel: P. V. Abrametz for the appellant R. N. Claxton for the respondent Crown JUDGMENT ROTHERY J. September 21, 2007 [1] Sean Fleury (“Fleury”) appeals his conviction of dangerous driving. The learned trial judge concluded that the circumstantial evidence presented by the Crown was consistent with Fleury’s guilt and the circumstantial evidence was inconsistent with any other rational conclusion. [2] At about 8:00 a.m. on July 22, 2006, Cst. Poiré located minivan immersed in slough about 100 yards east of the Highway #2 at the point where Highway #11 intersects with Highway #2 at “T” intersection, few kilometres south of Prince Albert, Saskatchewan. The police photographs showed that tire tracks left the highway perpendicular to it, drove for about 25 feet, then up hill scraping the sod clear, travelling an additional 10 feet, then no visible tracks until the minivan landed in the slough. No one was at the scene, and Cst. Poiré called for the dive team to investigate. Cst. Poiré was able to identify the driver because Fleury’s personal effects floated to the surface. On enquiring at the hospital, Cst. Poiré was advised that Fleury had arrived at Victoria Hospital in Prince Albert about 1:00 p.m., and was being treated in emergency. [3] Cst. Poiré testified that, from the trajectory of the tire tracks, Fleury had approached the “T” intersection from the west, and had not stopped at the stop sign. By the distance of the tire tracks, and the fact that the minivan became airborne on impact with the hill and flew into the slough, Cst. Poiré testified that the minivan was travelling at considerable speed. Fleury had travelled across Highway #2 which was divided four-lane highway without stopping at the stop sign. Cst. Poiré testified that traffic is heavy on both Highway #11 and Highway #2. Thus, it was reasonable for the trial judge to infer that traffic was likely to be heavy at the “T” intersection. By driving at such high speed across the four lanes of traffic, the trial judge properly concluded this to be dangerous driving. [4] The issue on appeal is whether the circumstantial evidence which led the trial judge to conclude Fleury was travelling on Highway #11was inconsistent with any other rational conclusion. It was the defence’s theory at trial, and Fleury’s unwavering statement given to Cst. Poiré later the afternoon of the accident, that Fleury was travelling south on Highway #2 at the point of the “T” intersection and swerved to miss deer that had come onto the highway. [5] Fleury’s counsel argues that, without expert evidence called by the Crown to prove that it was not possible for Fleury to have swerved in such a manner to create the same physical evidence shown in the photographs, the Crown has failed to prove that Fleury drove through the stop sign on Highway #11. In other words, the trial judge could not simply rely on his own experience to find that Fleury could not have been able to manoeuvre the minivan in the way he told Cst. Poiré. [6] The learned trial judge would certainly be circumspect about the explanation that Fleury gave to Cst. Poiré. It seems unlikely that minivan could make 90° left turn at substantial speed without leaving any tire tracks across the two or three lanes it had to travel before leaving the pavement perpendicular to Highway #2. And, it seems unlikely that the minivan could navigate such sharp left turn at high speed without rolling. However, this is information that is beyond the general knowledge of trial judge. [7] While no accident reconstructionist was available to check the accident scene after the incident, the Crown could have called an expert to testify whether the defence’s theory could hypothetically be rational. However, no expert evidence was called. [8] agree with Fleury’s counsel that the learned trial judge erred in concluding that the only direction that Fleury could have come from was Highway #11, thus driving through the intersection at high speed without stopping at the stop sign. [9] Because the Crown’s evidence was not the only rational conclusion to be drawn by the trier of fact, it has failed to prove the case beyond a reasonable doubt. (See: R. v. Linn (R.W.) (1994), 1994 CanLII 4643 (SK CA), 116 Sask. R. 203 (C.A.) At para 13 15). Fleury is entitled to the benefit of that doubt. The appeal is allowed, and the conviction is set aside. J. A. R. Rothery

The appellant appeals his conviction of dangerous driving. The police did not see the appellant driving; they came across his minivan immersed in a slough in excess of 35 feet off the highway. Based on the tire tracks, the appellant was charged with dangerous driving. The trial judge concluded that the circumstantial evidence presented by the Crown was consistent with the appellant's guilt and the circumstantial evidence was inconsistent with any other rational conclusion. The appellant argues that without expert evidence called by the Crown to prove it was not possible for the appellant to have swerved in the manner he testified to create the same physical evidence shown in the photographs, the Crown has failed to prove that the appellant drove through the stop sign. In other words, the trial judge could not simply rely on his own experience to find that the appellant could not have been able to manoeuvre the minivan in the way he described. HELD: Because the Crown's evidence was not the only rational conclusion to be drawn by the trier of fact, the Crown has failed to prove the case beyond a reasonable doubt. While no accident reconstructionist was available to check the accident scene after the incident, the Crown could have called an expert to testify whether the defence's theory could hypothetically be rational. However, no expert was called. The appeal is allowed and the conviction set aside.

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J. Q.B. A.D. 1993 No. 3500 J.C. S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ROBERT SMITH and HER MAJESTY THE QUEEN B. Morgan for the applicant F.W. Dehm for the respondent FIAT WALKER J. January 17, 1994 THE APPLICATION This is an application by a person charged with two countsof sexual assault involving two complainants 15 and 13 years of agefor a remedy under s. 24(1) of the Canadian Charter of Rights andFreedoms compelling the respondent to provide full disclosure to him. The application is based on ss. 24(1), 7, 11(a) and 11(d) of the Charter and s. 650(3) of the Criminal Code, R.S.C. 1985, c. C-46. The applicant argues that his constitutional rights and his right tomake full answer and defence have been infringed by the refusal ofthe respondent to provide full and complete disclosure without trustconditions and undertakings being imposed thereon. It is importantto note that the applicant contends not for less onerous trustconditions or undertakings, but that disclosure be without trustcondition or undertaking of any sort. The Crown maintains that the trust condition or undertaking required is appropriate in the circumstances of this case. The Crown says the seeking of the trust condition in question is an effort to ensure that sensitive material in the victims' statements and videotapes be not wrongfully used and to ensure the right to privacy of the two complainants. The sole issue for determination by this Court is whetheror not the imposition of trust conditions on the disclosure of thevictims\' statements prevent the accused from exercising his right tomake full answer and defence as guaranteed by ss. 7 and 11 of theCharter. THE MATERIAL The material filed on the application is as follows: (1)The affidavit of the applicant; (2)The affidavit of the Regional Crown Prosecutor of the Saskatoon Prosecution Unit of the Saskatchewan Department of Justice; (3)The affidavit of Crown Prosecutor of the same Unit. The affidavit of the applicant, among other things, states that his counsel is unable to give him copies of certain disclosure material to enable him to review and study it on his own as he wishes and feels it necessary to do. The Prosecutors' affidavits establish that, in the context of sexual assault cases involving children, there is policy reflected in this paragraph of the affidavit of the Regional Crown Prosecutor: That in July of 1993 Murray Brown of the Public Prosecutions Branch in Regina, Saskatchewan indicated that instances had occurred where the videotaped statements of child sexual assault complainants and the written statement of teenage sexual assault victim had come into the possession of persons other than the accused individual or his defence counsel. As result of that situation, the Public Prosecutions Branch adopted policy that disclosure be provided in such way that the material be controlled by the defence lawyer to ensure that copies did not become available for distribution to persons other than those involved in the case. (emphasis added) The affidavits of the prosecutors went on to deal with specific cases in which statements (written and videotaped) had come into possession of persons other than the accused and his counsel. Statements and documents had gotten, for example, into the hands of Member of Parliament, the prosecution office, law firms unconnected with the case, schools and the Saskatoon Police Commission. danger to life had resulted from disclosure material having gotten into the public area. Disclosure material had turned up at schools, arcades and other public places. In short, the prosecutors' affidavits, somewhat and in broad, reflect the situation commented on in the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (The Martin Committee Report), later referred to in this fiat. At p. 180 that Report states: The Committee has heard of appalling instances where disclosure briefs containing highly sensitive material have been made publicly available: for example, the statement of child complainant in an allegation of sexual assault subsequently circulated at the complainant's school. ... Occurrences of this type are, in the Committee's view, flagrant abuses of the right to disclosure. The devastating effect which such conduct can have on the privacy or safety of the victims or witnesses concerned is obvious. The applicant takes no exception to the affidavits filed by the Crown save that they do not establish the degree or extent to which the problem dealt with exists in this jurisdiction. GENERAL R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] S.C.R. 326 (S.C.C.) establishes that the right to disclosure is constitutional right not subject to qualification. Disclosure is right vested in an accused not defence counsel. Disclosure is constitutional right because of its crucial role in making full answer and defence. Aside from the Charter, fair trial requires that accused persons know the case they have to meet. Information regarding the victims' allegations is essential to this and must be disclosed. However, this does not absolve the Crown of responsibility to do all it can properly do to ensure that the privacy interests of complainants are protected. The Crown has an obligation to protect the privacy of alleged victims of sexual assault cases. Victims' statements and videotapes made in the course of criminal investigation often contain sensitive personal information that the alleged victims would not, in normal circumstances, divulge. The making of videotape is an investigative tool to assist in the prosecution and it would not be made but for that prosecution. Inaddition to the privacy interests of the complainant, the publicinterest is also served by providing complainants with assurancesthat the statements and videotapes will not be reproduced anddistributed. This assurance of privacy encourages victims to come forward with their complaints. There can be, in proper circumstances, trust conditions imposed on defence counsel. Defence counsel are officers of the court. Defence counsel have, of course, no obligation to assist the prosecutor. As officers of the court, however, they hold positions of high respect and importance and, correspondingly, high responsibility and duty. These are opposite sides of the same coin. THE NATURE, EXTENT AND EFFECT OF THE CONDITION The nature, extent and effect of the condition sought to be imposed by the Crown in this case is important. The Crown proposed to make disclosure to counsel for the defence subject to the "trust condition" that "victim statements, written, videotaped or included in police report, (would) not be copied nor be allowed to leave (defence counsel's) office in the possession of anyone other than (defence counsel) or member of (his) firm, except with the written permission of the prosecutor." This is not an extensive or comprehensive condition. It concerns only victim statements. It concerns only copying and custody by counsel of them. It does not, of course, restrict communication to the accused applicant. It does not even, in any event in so many words or directly, restrict communication to third parties, although, as will be seen, it probably has that result in indirect fashion. It does not impose restrictions on other than "victim statements". This nature, extent and effect of the condition will be important in deciding this application. It may be asked how effective the condition proposed by the Crown is to deal with the Crown's concern regarding the protection of privacy of the child complainant, given the limited nature, extent and effect set out above. In Thomsen v. R., infra, the order of Sirois, J., provided that "Counsel for the applicant [should] not be allowed to release any videotape to anyone except in accordance with the terms of [the] order." There is no such restriction here. Any consideration of this problem brings to the fore certain duties of defence counsel as an officer of the court, though not formally imposed by the court. One of those duties, in my view, is not to give disclosure materials to the public. To do so would fall short of acting responsibly as an officer of the court. Defence counsel may, "normally, disseminate materials only to those third parties whose examination or possession of the material is in good faith necessary to prepare and conduct the defence." These duties of defence counsel, when considered with the condition here being considered, meet Crown's reasonable and proper objective of the protection of the privacy of child complainants. R. V. STINCHCOMBE The accused contends that his rights pursuant to ss. 7, 11(a) and 11(d) of the Charter are violated. At issue is whether the trust conditions sought to be imposed are inconsistent with the right to disclosure which flows from the constitutional guarantee of fair trial. The Supreme Court of Canada, in R. v. Stinchcombe, held that disclosure in criminal proceedings is now constitutionally required by s. of the Charter, which guarantees that where the life, liberty or security of the person is at stake, he or she will not be deprived thereof except in accordance with "the principles of fundamental justice". Does Stinchcombe go further as contended by the applicant? While disclosure is now constitutional right, it is not disclosure as such that is guaranteed, but disclosure as part of or the means of securing the fairness of the trial and the right of the accused to make full answer and defence. The obligation to disclose is not absolute. My concern in this application is, therefore, whether the trust condition affects the right of the applicant to make full answer and defence. Some means of disclosure may be preferred by the accused over others, but, if there is no adverse effect on the fairness of the trial, the manner of disclosure is not Charter violation. Crown counsel has certain discretion, reviewable at the request of defence counsel. Instances are set out in Stinchcombe. Stinchcombe dealt in general principles and stated that it was not possible or appropriate to lay down precise rules. It is to be noted that there is no refusal by the Crown to disclose in this case. The Crown is willing to disclose the material in the packet. It says it has no other material to disclose than was in the packet forwarded to counsel for the applicant. Counsel for the applicant has refused to accept disclosure on the terms or trust conditions put forward by the Crown. There is no doubt of the paramountcy of the right to fair trial, but there are competing values of stake in disclosure. These values include public safety,the privacy interests of victims or witnesses and the need tomaintain the integrity of the administration of criminal justice. These important values must be accommodated to the greatest extent possible. THE MARTIN COMMITTEE REPORT significant examination of the competing interests at stake in disclosure is contained in the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions(The Martin Committee Report), which was submitted to the Attorney General of Ontario this year. The Committee was struck in June 1991, to study the early stages of the criminal process, namely, charge screening, disclosure and resolution or plea discussions. chapter of the Report dealt extensively with the subject of disclosure. want to acknowledge full use of that Report and some of its terminology and say that the reasoning in it has aided me and given me comfort in the result at which have arrived. Two of the Committee's recommendations had to do with the improper dissemination of disclosure materials: 34. The Committee is of the opinion that it is inappropriate for any counsel to give disclosure materials to the public. Counsel would not be acting responsibly as an officer of the court if he or she did so. 35. The Committee is of the opinion that defence counsel should maintain custody or control over disclosure materials, so that copies of such materials are not improperly disseminated. Special arrangements may be made between defence and Crown counsel, with respect to maintaining control over disclosure materials where an accused is in custody, and the volume of material disclosed makes it impractical for defence counsel to be present while the material is reviewed. The Committee suggests that the two recommendations "responsibly reconcile the need to provide full disclosure with the need to prevent misuse of disclosure material". It also referred to the obligation on defence counsel recognized by the Supreme Court in Stinchcombe, to act responsibly with respect to disclosure. agree with the two recommendations and that they do effect the important reconciliation. The Committee gives special place to investigators or experts retained by the defence. Again, agree. The Committee specifically contemplated the giving of an undertaking by defence counsel. Again, agree. The trust conditions attached to disclosure by the Crown in this case are reasonable and strike balance between the right to disclosure and the rights of alleged victims, it being recognized that the right to fair trial is paramount. THE NEWFOUNDLAND CASES The applicant refers to several cases from the courts of Newfoundland as follows: R. v. Vokey (1992), 1992 CanLII 7089 (NL CA), 10 C.R.R. (2d) 360 (Nfld. S.C., Appeal Division). R. v. Fleming (1992), 1992 CanLII 7251 (NL SC), C.R.R. (2d) 130 (Nfld. S.C., Trial Division). R. v. Petten (1993), 1993 CanLII 7763 (NL CA), 21 C.R. (4th) 81 (Nfld. S.C., Appeal Division). R. v. Mercer (1992), 1992 CanLII 7230 (NL SC), 105 Nfld. and P.E.I.R. (Nfld. S.C., Trial Division). They, with respect, provide no precise principle that applies in this case. In Vokey, important information was not disclosed in timely fashion, although it was provided prior to trial. The Court of Appeal ordered the trial to go ahead, but emphasized the importance of disclosure. Goodridge C.J.N., at p. 370, made the following obiter comments regarding the manner of disclosure: The Supreme Court in Stinchcombe did not deal with the question of how disclosure is to be made. The manner of disclosure must, for now, be regarded as one of reviewable discretion on the part of Crown counsel. It ought generally to be accomplished by the delivery of photostatic copies of the materials required to be disclosed. There will be circumstances where the provision of photostatic copies is not desirable. In such cases, the material should be displayed to defence counsel in place and under circumstances where meaningful examination of the displayed material may be made. Detailed notes should be permitted. verbatim reproduction by hand of documents would generally not be permitted where Crown counsel, in the exercise of his or her reviewable discretion, considers that photostatic copies of those documents should not be provided. In most cases, no distinction is to be made between photostatic copy and handwritten verbatim reproduction. The Court of Appeal contemplated some flexibility with respect to the manner in which disclosure is provided. In Fleming, the court considered the policy of the Crown that required defence counsel to review all relevant material at police headquarters. Thousands of documents were involved. The Crown permitted the review of the relevant materials but refused to provide copies. On the s. issue, the Court concluded: The material collected by the Crown in this application is massive. There are thousands of documents, reports, statements and other material which must be made available to the accused. The review of the relevant material, in this case, would be impossible because the accused is incarcerated in the special handling unit of Her Majesty's penitentiary. find that the Crown's refusal to provide copies of all relevant information with respect to this application significantly impeded the accused's ability to make "full answer and defence" and thereby violated the accused's rights under s. of the Charter. In Petten, the court considered another policy of the Crown on disclosure. The Crown required, in all cases, an undertaking acknowledging receipt and limiting the distribution of disclosure materials. The accused had been charged with mischief. The court emphasized the importance of disclosure to the fairness of the trial. However, the court specifically held that requiring the undertaking as condition of disclosure was not denial of disclosure. The court, at p. 84, referred to similar case in Newfoundland, R. v. Luff (1992), 1992 CanLII 7113 (NL CA), 11 C.R.R. (2d) 356 (Nfld. C.A.) so: In Luff, the Trial Judge found that the Crown's failure to provide copies of all documents in its file to the defence ran contrary to the principles enunciated by Stinchcombe. This Court found that there had been no failure to disclose because the prosecution's file had been made available for viewing by the defence and, in the circumstances, this was sufficient. Essentially the same thing occurred in the present case. The file was made available for viewing by the defence or, alternatively, copies were offered subject to the undertaking being given by defence counsel. The question of the undertaking will be addressed below, but in any event it is clear that there was no failure to disclose by the Crown. It could not be maintained that the Respondent would not be able to make full answer and defence to the charge, so the stay of proceedings entered by the Trial Judge was not warranted. (Emphasis added). Thus, the Court of Appeal found that placing conditions on disclosure did not constitute failure to disclose and an infringement of s. of the Charter. It is clear, however, that the Court of Appeal disapproved of the Crown's policy of imposing conditions on all disclosure in every case stating at pp. 84-85: Crown counsel has informed the Court that such is no longer required and this is obviously right decision. As already stated, hopefully clearly, the nature and extent of the release of information must be governed by the particular case. This will include any conditions which may be attached to such release. It is obviously as inappropriate for the Crown to impose the same stringent conditions on every release of information in every case as it is for the defence to expect release of all information in every case, without limitation or conditions. Each matter must be dealt with on its own merits. In Petten, the Court of Appeal made specific mention of Mercer. However, the Court of Appeal in Petten did not find Mercer to be inconsistent with their decisions. In considering Mercer, this is significant. Mercer involved charge of possession of weapon dangerous to the public peace. Again, as in Petten, disclosure was provided by the Crown only with the execution by defence counsel of an undertaking and acknowledgement. It was apparently conceded by Crown witness that the undertaking "restricted defence counsel in the preparation of his defence". It is not clear how it did so. The court concluded that the disclosure was improper and contrary to the Charter. Mercer and Petten can be reconciled only if it is assumed that the objection in both cases was to the blanket nature of the policy of requiring an undertaking. For example, Mercer contemplated that there might be cases in which the withholding of photocopies was required at p. so: In my opinion, if the Crown has reason to believe that the provision of photocopies in certain circumstances could unduly affect or impair the administration of justice, then photocopies should be withheld. An accused or his counsel may then apply to Court for review of that decision. Further, there is some indication that the findings in Mercer were limited to the facts of that case at p. 10: On the facts before me am satisfied that photocopies can be safely provided to the defence and to require defence counsel to sign the undertaking requested may impair the ability of the defence to make full answer and defence. On the facts of this application it appears to me that in cases like the one in question the policy of requiring an undertaking and acknowledgement in its present form is unnecessary and should be discontinued. Mercer does not stand for the proposition that disclosure with conditions is per se unconstitutional. The case was concerned, rather, with the fact that the policy of the Crown was applied in every case. The cases together indicate that the Newfoundland courts looked with disfavour upon the blanket policy of the Crown on the providing of undertakings in all cases, regardless of whether there was some sensitive material to be disclosed. If the Mercer and Petten cases are looked upon as not reconcilable Petten, coming from the Court of Appeal, is preferred by me. In any event, now have the guidance and aid of Thomsen v. R., supra, which is, although my information on it is vague, proper to be followed by me. THOMSEN V. R. The applicant contends for disclosure without conditions or undertakings of any sort. Little has been said judicially on this matter in this jurisdiction. However, in Thomsen v. R., on April 12, 1993, Mr. Justice Sirois, on the application of the accused and after hearing the prosecution and the Minister of Social Services for the Province of Saskatchewan, made this order: 1.) With regard to any videotape to be provided by the Respondent through disclosure that: a.) The Applicant shall enter into an undertaking containing the following terms before any videotape is released to him: i.) That he will not make copy of any videotape provided by the Crown of interviews conducted with the complainant in the investigation of the pending charge against him under S. 271 of the Criminal Code; ii.) That he will not watch any videotape provided to him with anyone other than his counsel or any expert witness retained on his behalf with regard to the said charge; iii.) That the videotapes shall be viewed by the applicant at the office of his counsel or at his residence; iv.) That he will return any videotape provided to him after watching it to his counsel. b.) Any videotape provided to counsel for the Applicant shall be returned to the Melfort Detachment of the Royal Canadian Mounted Police at the conclusion of the appeal period after the trial of the said charge or upon decision being given in the Court of Appeal if there is an appeal from the decision at trial on the said charge. c.) The Applicant shall be allowed to release any videotape to expert witnesses retained in the defence of the said charge. d.) Counsel for the Applicant shall not be allowed to release any videotape to anyone except in accordance with the terms of this Order. 2.) The Minister of Social Services for the Province of Saskatchewan is ordered to provide to the Respondent its file or files, including but not limited to the notes of Ms. Linda Bradley, with regard to its investigation of the sexual abuse allegations against the Applicant with regard to his daughters. That order runs counter to the applicant's position that the disclosure in this case ought to be without condition or undertaking of any sort. It is the "applicant" who must enter into the "undertaking", although counsel for the applicant is also restricted by the order. The "undertaking" provides that the applicant will not make copy of any videotape of interviews with the complainant or watch any videotape except with his counsel or an expert witness retained on his behalf. Videotapes are to be viewed at the office of counsel or the accused's residence. Release to expert witnesses is allowed. Finally, counsel is ordered not to release any videotape except in accordance with the order. This order clearly approves of conditions and undertakings in sexual cases. This order is, in nature, extent and effect, not unlike the trust conditions being considered in this application. Jurisprudence in this jurisdiction, limited as it is may be and with little information about that application proper, is clearly against the applicant in his quest for disclosure absolutely without condition or undertaking. This is so whether the problem be looked at matter of law or on the merits of this case on its particular facts or merits. The applicant says that Thompsen was wrongly decided. do not agree. THE APPLICANT'S APPROACH Counsel for the accused referred often to the situation of hypothetical accused not represented by counsel. The case of an unrepresented accused is not before this Court. The Crown is doing what it can to prevent the improper use of sensitive material necessary to the prosecution of serious sexual offence. How the Crown would pursue that purpose in the case of an unrepresented counsel is not relevant here. Each matter must be dealt with on its own merits. The applicant says he needs and has the right to review and study the complainant statements, including written and videotaped statements, on his own and away from the office of counsel. He says he needs and has the right to utilize those statements as such, rather than in substance after having read and seen them as often as might be necessary, in quest for witnesses and ideas for defence, presumably showing them to others, when he, in his own judgment, thinks it useful and proper to do so. He says, as is correct, that there is no evidence indicating that he is the sort of person who might be expected to abuse those rights he says he needs and claims. He, as is correct, says that the Crown has established certain problem with wrongful use of complainant statements generally but not the degree in which it exists in this jurisdiction. In my view, the material filed by the Crown is sufficient to establish considerable problem with wrongful use of disclosed material in this jurisdiction. In any event, the privacy and safety aspects of wrongful use are so important that the degree of abuse shown by the Crown merits great care and preventive measures in this case. Moreover, it is not necessary, as suggested by the applicant, for the Crown to attack the applicant and attempt to mark him as of questionable integrity to allow this care and prevention place in the process of disclosure, if, indeed, such an attack or marking is useful or proper in any event. In result, and in all the circumstance of this application, the claim of the applicant to the right of review and study of the complainant statements, written and videotaped, on his own and away from the office of counsel, and his right to utilize them as claimed, are not essential to provide disclosure and his right to fair trial and to make full answer and defence. The applicant, in all reason, is able to review the statements, written and videotaped, as often as considered necessary by the applicant and his counsel, to know the content, substance and thrust of them. Notes can be taken. Copies can not be made. There is something particularly damaging about having copies of written statements and videotapes somewhat in circulation and out of the control of counsel and available to the reading or view of members of the public, depending on the good judgment of the accused, being one with considerable interest in matters. This decision is part of the "balancing" am required to do between the admittedly paramount right to disclosure and fair trial and right to make full answer and defence, on the one hand, and the right to privacy of the complainants, on the other. have done this balancing solely in the circumstances and on the facts of this application. POLICY The requirement of trust conditions on disclosure by the Crown in this case is not the result of blanket policy applied to all cases. It is the result of policy applied to cases of sexual assault. am not hearing this application to either establish policy or question any policy of the Department of Justice in the area under consideration, whether the area be looked at generally or in the context of sexual cases involving children. am hearing this application, on all its particular facts and circumstances, to decide whether the applicant will have unconditional disclosure or not. Each case is to be decided on its own merits and facts. To the extent that Mercer and other Newfoundland cases dealt with the propriety or continuation of policy, they are, with respect, not useful to me for present purposes. MIDDLE GROUND There was filed by the applicant, at the opening of the hearing of this application, draft order modelled somewhat on the order of Mr. Justice Sirois of this court in Thomsen v. R., supra. It represented the applicant's "fall back" or second position. It was the first intimation had of this new position. The applicant did not abandon his first and basic position that he was entitled to disclosure without trust condition or undertaking of any sort, but realized and accepted that the order of Mr. Justice Sirois in Thomsen v. R., supra, presented considerable problem in arguing and contending for that first and basic position that he was entitled to disclosure without trust condition or undertaking of any sort. Counsel for the applicant went so far as to concede that, in light of Thomsen v. R., supra, his "fall back" or second position was the one he now "liked". Counsel for the applicant did make it clear that the draft order was hastily drafted and was not such as might be utilized as such and without considerable revision and further consideration. Counsel for the Crown, maintained his position that the Crown condition was proper, but conceded that might conceivably consider "middle ground" solution, based somewhat on the draft order, and pointed out, in brief fashion, some of its shortcomings in the Crown's view. He agreed that it could not, in any circumstance, be utilized without considerable revision and further consideration. He wished, in any event and prior to any possible use, in some fashion, amendment to ensure that contempt proceedings might follow in the event of breach. do not wish it thought that have put aside, in offhand fashion, the positions of counsel that it is open to me to reject both of their basic submissions and to go to "middle ground" and make an order of my own for the conditions or undertaking of disclosure. That is not so. note that an adjournment for the purpose of counsel themselves considering the revision of that draft order, so that it might meet the needs of both the Crown and the defence, met with no success. Counsel were not able to make that revision. Nor am able to make that revision, particularly without any real submissions or suggestions from counsel. In any event, the revision of that draft order is neither an aspect of my duty on this application nor useful exercise. had no evidence and no real submission on that matter. had just request to "do something" if rejected the two positions formally put forward. My approach will be to deal with matters as they were formally presented. The applicant said he was entitled to disclosure without trust conditions or undertakings of any sort. The Crown said that application ought to be dismissed. will do one or other of those things, with in consideration along the way of the trust condition sought to be imposed by the Crown. will not embark upon setting up of trust condition or undertaking in court order that counsel were neither able to agree upon nor prepared to address in any detailed way. will, out of respect for able and detailed arguments by counsel, avoid the temptation of saying, in summary fashion and without more, that the applicant is simply not entitled, in the circumstances of this case, to disclosure without trust condition or undertaking as requested. CONCLUSION I find that evidence does not show how disclosure, on thetrust condition in question, would prevent the applicant from makingfull answer and defence to the charges he faces. find that the interest of the public and the complainants in having the statements and videotapes narrowly disseminated is clearly shown. Providing thestatements and videotapes to counsel for the accused on trustcondition that counsel retain them in his possession, serves the dualpurpose of providing detailed disclosure while ensuring that thematerials are not disseminated more widely than is necessary for thefairness of the trial. The right to disclosure and the right to make full answer and defence is not the right to unconditional disclosure. The evidence does not establish that the accused's right to make full answer and defence is impeded by the requirement that his counsel execute an undertaking with respect to the disclosure provided. The conditions apply only to victim's statements, videotapes and references to victim's statements obviously matters of some sensitivity. The Crown is not withholding disclosure. Theinformation contained in those statements and videotapes is availableto the accused and retained experts for use in preparing his defence. The accused will know the substance of the complaints and,therefore, the case he has to meet. In the circumstances of thiscase, there is no danger to the fairness of the trial by virtue ofthe trust condition attached to disclosure. In result, for the foregoing reasons and on the foregoingreasoning, the application is dismissed.

FIAT The accused, who was charged with two counts of sexual assault involving complainants 15 and 13 years of age, applied for a remedy under ss.24(1) of the Charter of Rights compelling the respondent to provide full disclosure to him, without trust conditions or undertakings of any sort. HELD: The imposition of trust conditions on the disclosure of victim's statements and videotaped statements in cases of sexual assault does not prevent the accused from exercising his right to make full answer and defence as guaranteed by ss. 7 and 11 of the Charter. The obligation to disclose is not absolute. The Corwn's obligation to protect the privacy of the complainants is fulfuilled by providing the statements and videotapes to counsel for the accused on trust condition that counsel retain them in his possession. The information contained therein is available to the accused and retained experts for use in preparing his defence. Since the accused knows the sustance of the complaints and, therefore, the case he has to meet, there is no danger to the fairness of the trial by virtue of the trust condition attached to disclosure. The public interest is served and the integrity of the criminal justice system is maintained when complainants are assured that staements and videotapes will not be reproduced. Application dismissed.

5_1994canlii5076.txt

Hood, J. 2001 SKQB 64 F.L.D. A.D. 2000 No. 468 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: LORI ANN GLIER and BERNARD FRANK GLIER RESPONDENT Noel S. Sandomirsky, Q.C. for the petitioner Gerald B. Heinrichs for the respondent JUDGMENT KRAUS J. February 2, 2001 [1] The petitioner seeks interim custody, or primary residence of the children, pursuant to s. 6 of The Children\'s Law Act, 1997, S.S. 1997, c. C-8.2 (the "Act"). The respondent seeks a declaration declining jurisdiction, or an order of joint custody, pursuant to the Act. [2] The parties were married in 1994. They are both university graduates and teachers. The petitioner was employed as substitute teacher at Richmond, British Columbia until the time of the birth of their son when she became full time homemaker. The respondent continues to be employed as full time high school teacher in Richmond. [3] The parties have two children: their son will be six years of age in June and their daughter will four years of age in May. They have always resided in the matrimonial home with their parents in Richmond, until the 3rd day of November, 2000, when the petitioner removed them from the matrimonial home and brought them to Regina. The son had been enrolled in kindergarten in Richmond, across the street from the matrimonial home, up to the time of the move. [4] The petitioner gave no notice to the respondent of the intended move, and he deposes that he returned home from work and discovered that the petitioner and the children were gone, without any warning or note. The house was in disarray and he feared that robbery had occurred and that his wife and children had been injured or abducted. However, within few minutes of arriving home, he received telephone call from the petitioner who told him that she was in Regina with the children, but she said very little else. [5] The respondent's parents, the children's paternal grandparents, live nearby and had been greatly involved in the lives of the children. The paternal grandmother deposes that the grandparents saw the children once or twice weekly and assisted with babysitting from time to time. The petitioner often brought the children to their house when she went shopping or ran errands, and the children would have lunch at their home. The petitioner and the respondent and their children came over to their home for supper almost every Sunday, being the normal regular family important event, at which time the children interacted with their extended family and friends. Since the move, the paternal grandparents have received no calls from the petitioner, nor from the children, and they had received no notice about the move. They are ready, willing and able to assist their son in the care of the children to enable them to live normal, healthy and happy life in British Columbia. Two sisters and one brother of the respondent, aunts and uncle of the children, also live in the lower B.C. mainland and participate in family gatherings when the children play with their cousin. The family members depone that the respondent is caring and loving father of the children. [6] The petitioner has deep roots in Saskatchewan. She was born and educated here and her parents and grandmother still live here. She met the respondent when he was in training camp with the Saskatchewan Roughriders, and later followed him to his home in British Columbia. Following their marriage in 1994, she moved into his house which had been purchased by him in 1985. The petitioner initially brought the children to her parent's residence in Regina on November 3, but has since moved with the children to her grandmother's residence several weeks ago. Her grandmother is 85 years of age. The petitioner does not deny that she and the children have moved to her grandmother's residence, but she deposes in her affidavit (which is the only material filed in support of her application) that she and her children have remained guests of her parents and she has enrolled their son in kindergarten in the public school system in Regina. Beyond that, there is no evidence about the circumstances of the children. [7] According to the petitioner's evidence, the respondent is domineering and controlling, has threatened her over the past ten years of marriage, and has been "too physical" with the children. She cites two allegations of such. She asked the respondent to engage in anger management control and personal or marriage counselling, but the respondent refused. According to her, he reasoned that it was too expensive, and, if she had problems, she should visit her parents or get help for herself. Indeed, she sought counselling from psychologist in British Columbia and, in the result according to her, she brought the children with her to Regina on November 3, with the intention that she would not return to the matrimonial home nor resume cohabitation with the respondent. [8] The respondent deposes that the petitioner makes "terrible and false statements" about him. His perception is that they have the basis for good marriage. He denies being aggressive with the children, and alleges that the petitioner is the only one who ever spanked either of the children and he never spanked them. He denies injuring the children and deposes that the allegation of being domineering person is false allegation, and one that the petitioner has never made previously. He deposes that he refrained from taking proceedings in British Columbia in the hope that they could achieve reconciliation. On the basis of the petitioner's evidence that she did not intend to return to the matrimonial home when she left on November 3, he deposes that he now understands that he had been misled for two months so that the petitioner could establish legal residency in Saskatchewan. According to his evidence, the petitioner talked about reconciliation and counselling. He deposes that she left quickly and secretly to prevent him from taking any court proceedings in British Columbia to stop her move. [9] I am not satisfied that the children are habitually resident in Saskatchewan. They are not living with their mother with the implied consent or acquiescence of their father. He delayed in bringing an application for custody in British Columbia because of his mistaken belief that the petitioner was considering reconciliation, although he learned, when he received her affidavit in support of her custody application, that she never had any intention to return to the matrimonial home. accept that evidence, which is uncontradicted, and leads to the conclusion that the father did not impliedly consent, nor acquiesce, to the children living with their mother in Regina. The children have a real and substantial connection with British Columbia, and the substantial evidence concerning their best interests is available in that jurisdiction. [10] The persons who can attest to the professional, social and family circumstances of the children reside in the Province of British Columbia where they have lived all of their lives. The son had been enrolled in kindergarten there until the time that his mother moved him to Regina. It is likely that his teacher, playmates, parents of the children's friends, paternal grandparents, aunts, school professionals and others, including the petitioner's psychologist, may be called to testify about facts and circumstances bearing on the best interests of the children. On the other hand, the children have only been resident in Saskatchewan for approximately three months, during which time they have moved on two occasions. There is no evidence about the schooling of the son, nor of the career plans of the petitioner, nor of the care to be provided to the two children while she may be out of the home working. It is likely that the petitioner's parents and her grandmother may be witnesses as to facts and circumstances bearing on the best interests of the children. However, when the balance of convenience is considered between British Columbia and Saskatchewan, the factors weigh heavily in favour of the convenience of British Columbia. adopt the reasoning Helper J.A., in Holt v. Lippert (1996), 1996 CanLII 18017 (MB CA), 21 R.F.L. (4th) 241 at 242-3 (Man. C.A.): ... [T]hose individuals who have the most current information on the children are in the best position to assist the court in providing the evidence of the children's state of well-being. The people who have developed social, educational and professional relationship with the children in the past two and one-half years are in Manitoba. To require those persons to travel to Ontario to provide that evidence is not in the best interests of these children. also adopt the reasoning of Wimmer J. in Breker v. Breker, [1995] S.J. No. 37 (QL) (Q.B.) that the forum of convenience is where evidence will be most easily accessible concerning the routine, habits and proclivities of the children, being necessary considerations to determine the best interests of the children. [11] If I had determined that the court has jurisdiction for purposes of making a custody order under the Act, I would decline to exercise it, pursuant to s. 16 of the Act, since it is more appropriate for jurisdiction to be exercised in British Columbia. [12] I make these determinations on the assumption that the respondent will not disturb the status quo as to the residence of the children unless and until court authorization has been obtained. He is directed to forthwith file such undertaking, failing which counsel have leave to make further representations.

The mother sought interim custody of their 3 and 5 year olds or primary residence of the children pursuant to s.6 of the Children's Law Act. The father sought a declaration declining jurisdiction, or an order for joint custody. HELD: The children had a real and substantial connection with British Columbia and evidence of their best interests was available there. They were not habitually resident in Saskatchewan and had been here only 3 months. They were not living with their mother with the implied consent or acquiescence of their father. The uncontradicted evidence that the mother never had any intention to return to the matrimonial home was accepted. The Court would have declined to exercise jurisdiction in any event pursuant to s.16 since it was more appropriate for jurisdiction to be exercised in BC. The father was directed to forthwith file an undertaking to not disturb the status quo until court authorization has been obtained.

2_2001skqb64.txt

J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 19 Date: 20110207 Between: Docket: CACR1899 Her Majesty the Queen in Right of Saskatchewan and Daniel S. Lariviere Coram: Lane, Jackson and Smith JJ.A. Counsel: Anthony Gerein for the Crown Aaron Fox, Q.C. for the Respondent Appeal: From: 2010 SKQB 360 (CanLII) Heard: February 7, 2011 Disposition: Allowed (orally) Decision: February 11, 2011 By: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Smith Jackson J.A. I. Introduction [1] Constable Daniel Lariviere was charged with assaulting Stanley Severight with weapon, to wit: pepper spray, contrary to s. 267(1)(a) of the Criminal Code. judge of the Provincial Court of Saskatchewan found him guilty of the offence and granted him conditional discharge with probation period of nine months (unreported reasons, dated October 28, 2008). On appeal to the Court of Queen’s Bench, judge of that Court quashed his conviction and ordered new trial (2010 SKQB 360 (CanLII)). [2] The Crown applied for leave to appeal pursuant to s. 839 of the Criminal Code. The Court granted leave and allowed the appeal in judgment from the bench. These are our written reasons for doing so. [3] The following facts are taken from the trial judgment or are uncontroverted. On June 23, 2007, Cst. Lariviere and Cst. Hoffman were dispatched to the farm of Mr. Severight for the purposes of arresting Mr. Severight’s son. They were told before they left their detachment that Mr. Severight’s son could be violent, and Cst. Lariviere was issued taser. Both officers were armed with guns, batons and pepper spray. [4] The two officers arrived at the Severight farm about noon. After briefly questioning Mr. Severight’s wife, they determined that the son was not at home. As they were finishing their conversation, Mr. Severight arrived home, and they proceeded to ask him about the whereabouts of his son. The questioning of Mr. Severight took place in the yard near the Severight home. [5] At some point during the questioning, Mr. Severight started to walk away. Cst. Lariviere followed him, demanding to know where Mr. Severight was going and instructing him to stop. In the course of the brief exchange that followed, Mr. Severight became angry, turned abruptly and came back towards Cst. Lariviere. As Cst. Lariviere continued to walk towards Mr. Severight, the distance closed quickly between them. When the two were standing directly opposite each other, Mr. Severight raised his hand and pointed his finger at Cst. Lariviere’s face. Using colourful language, he yelled at Cst. Lariviere to leave his land. Cst. Lariviere “pushed” away the finger, and Mr. Severight brought his finger up again, and repeated his instruction to leave. [6] After Mr. Severight brought his extended finger up second time, Cst. Lariviere took his pepper spray out of its holder. He stepped back and sprayed one burst of pepper spray in Mr. Severight’s face. Mr. Severight fell to the ground. Cst. Lariviere now had his baton out. Mr. Severight started to get up and Cst. Lariviere ordered him to remain on the ground. Mr. Severight obeyed. The officers backed away and drove back to their detachment. As they left, they saw Mr. Severight rushing into the house. Cst. Lariviere estimated that this entire exchange, from when Mr. Severight started to walk towards the officers until he was lying on the ground, lasted “three or four seconds” only. Cst. Hoffman spoke in terms of “few” seconds. III. Decision of the Trial Judge [7] Cst. Lariviere testified that when Mr. Severight started to walk away he thought that Mr. Severight was “getting gun.” When Mr. Severight turned around, approached him and waved an extended finger in his face, Cst. Lariviere testified that he became afraid that Mr. Severight was going to punch him. In assessing these fears, the trial judge quoted the following passages from the cross-examination of Cst. Lariviere: Q. What was it about Mr. Severight—anything about Mr. Severight that told you he was livid? A. He was livid, all of it put together. Q. What's all of it? All of it. Now, I'm—I'm hoping this—this explains. Like, for example, if there is somebody on traffic stop that may do, and they say—they swear at me, "You're jerk. You don't have to write tickets." That's angry. When you approach, and you're yelling, and your posture is aggressive, you're coming towards me, and you're actually very, very intimidating, that is in my opinion livid. That's how describe it. I'm trying to be describing—it's more than angry. If he's standing this far away, saying, "F you," and wouldn't be as intimidated. There's a—there's difference, is what I'm trying to— Q. And you would have— A. —and he was livid. He was at the top of how angry you could be. Angry enough that would consider, like, rage. Like, it's angry, like that. [Unreported reasons, dated October 28, 2008.] [8] The trial judge accepted Cst. Lariviere’s evidence that he had been afraid, but he concluded that Cst. Lariviere misinterpreted Mr. Severight’s actions and had not been listening to what Mr. Severight was saying: [13] The defendant testified that he felt threatened by having this large man turn around and advance toward him, pointing his finger, however Mr. Severight had stopped and turned around because Constable Lariviere himself had said "Stop, where are you going?". [14] The defendant was obviously not listening to what Stanley was saying about getting off the property, nor was he hearing Mr. Severight’s words in evaluating whether Stanley was livid mad, or little angry, or frustrated, as stated by Constable Hoffman. [9] The trial judge made specific finding of fact that Mr. Severight did not assault Cst. Lariviere: [15] Specifically, in my opinion none of the conduct of Stanley Severight amounts to an assault on the person of the Defendant, the Defendant was not touched by Stanley, nor did Stanley attempt or threaten by an act or gesture to apply force to the Defendant. [10] The trial judge then considered whether the defence of self-defence was available to the accused. This required the trial judge to consider: (i) whether Cst. Lariviere had been operating under reasonable mistake of fact; and (ii) whether the force used by Cst. Lariviere in reacting to the perceived threat had been justified. The trial judge referred to R. v. Baxter (1975), 1975 CanLII 1510 (ON CA), 27 C.C.C. (2d) 96 (Ont. C.A.) wherein Martin J.A. wrote on behalf of the Court (at pp. 108-09): The accused's subjective belief that he was in imminent danger of death or grievous bodily harm and that his action was necessary in self-defence was, however, required to be based on reasonable grounds. In deciding whether the accused's belief was based upon reasonable grounds the jury would of necessity draw comparisons with what reasonable person in the accused's situation might believe with respect to the extent and the imminence of the danger by which he was threatened, and the force necessary to defend himself against the apprehended danger. Notwithstanding particular passages in the charge, taken by themselves, might imply that the issue was whether what the accused did was necessary or reasonable to protect himself, in my view, the charge considered as whole, correctly instructed the jury that whether the force used by the appellant was justifiable in self-defence under s. 34(2) of the Code depended upon whether he acted under reasonable apprehension of death or grievous bodily harm, and whether he believed on reasonable and probable grounds that he could not otherwise preserve himself from death or grievous bodily harm. [11] Using language similar to that taken from Baxter, the trial judge concluded his reasoning: [17] In my opinion the Defendant was mistaken in his belief that he was in imminent danger. It is however my opinion that even if his mistaken belief permitted the use of force as self defence, the use of pepper spray was excessive and not warranted. There were two well armed police officers present, and one unarmed land owner telling them to leave. [18] have considered that person defending himself from an attack, reasonably apprehended, cannot be expected to weigh to nicety the exact measure of necessary defensive action, but, armed with pepper spray, in the presence of another constable being told to leave by land owner is not the sort of situation where would conclude that an attack is reasonably apprehended. He rejected the defence of self-defence for these reasons, and found Cst. Lariviere guilty as charged. IV. Decision of the Summary Conviction Appeal Judge [12] Cst. Lariviere appealed to the Queen’s Bench. The learned appeal judge found two reviewable errors. First, he concluded that the trial judge’s reasons were inconsistent on the point of whether Cst. Lariviere reasonably believed that he was about to be grievously harmed: [25] Although not clearly articulated paragraph 17 appears to reflect finding by the trial judge that either he was satisfied that Constable Lariviere used force to repel the attack of Mr. Severight because he was under mistaken, but reasonable belief of an apprehension of grievous bodily harm and he believed the force was necessary to protect himself from grievous bodily harm or that the trial judge had reasonable doubt as to those facts. In coming to this conclusion the trial judge must have concluded that Constable Lariviere's mistake was reasonable, one that an ordinary person using ordinary care could have made in the same circumstances. [26] However in paragraph 18 the trial judge would appear to come to the opposite conclusion in that he says he would not conclude an attack is reasonably apprehended in circumstances where Constable Lariviere was armed with pepper spray and there was another officer present.... [13] Second, the appeal judge found that “the trial judge did not direct himself to all of the relevant evidence,” and in particular that the trial judge did not “address Constable Hoffman's evidence that he viewed Mr. Severight as threat to Constable Lariviere—a threat that could have physically harmed the accused” (at para. 28). The appeal judge also took issue with the trial judge’s failure to note certain facts relevant to the issue of proportionality: [30] Constable Lariviere testified that once Mr. Severight turned around, given the few seconds it took before Mr. Severight had his finger in his face he did not have time to tactically reposition. It was Constable Lariviere's view that given the brief time frame and in the context of Mr. Severight's rage, proximity and finger in his face, trying to talk him down was not an option. He then attempted to get Mr. Severight to back off by using empty hand control and telling Mr. Severight to get his hand out of his face. That did not work and Mr. Severight continued to yell at him and wave his finger in his face. Again the trial judge did not direct himself on all of the relevant evidence resulting in reviewable error. He does not address Constable Lariviere's assessment of the options available to him in the context of what he was facing. Instead, the trial judge focused on the fact there were two officers present. The appeal judge quashed the conviction and ordered new trial. V. The Appeal to this Court [14] The Crown appealed to this Court pursuant to s. 839 of the Criminal Code on the basis that the appeal judge had misinterpreted the trial judge’s reasons and exceeded the bounds of appellate review. Both of these issues constitute questions of law for which leave can be granted. In our respectful view, the appeal judge erred in both ways suggested by the Crown. [15] With respect to the first issue, the trial judge’s reasons do not reflect an inconsistency. At no point in his reasons did the trial judge find Cst. Lariviere’s mistake of fact to be “reasonable.” Rather, he engaged in classical alternative reasoning—holding that even if Cst. Lariviere’s mistake of fact had been reasonable, he would have rejected the defence of self-defence on the basis that the use of pepper spray was not proportionate response. [16] With respect to the second issue, the standard of appellate review is well known. The applicable test is whether properly instructed jury acting judicially could reasonably have rendered the verdict. An appellate court must re-examine and to some extent reweigh the evidence and its effect, but must not simply substitute its view of the evidence for that of the trial judge (see: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] S.C.R. 168). [17] Moreover, the failure on the part of trial judge to refer explicitly to certain evidence does not, in and of itself, make verdict unreasonable: ... [A] trial judge is not obliged to discuss all of the evidence on any given point, provided the reasons show that he or she grappled with the substance of the live issues on the trial. It is clear from the reasons that the trial judge considered the accused's evidence carefully, and indeed accepted it on some points. In these circumstances, failure to mention some aspects of his evidence does not constitute error ... (see: R. v. R.E.M., 2008 SCC 51 (CanLII); [2008] S.C.R. 3). [18] In this case, while the trial judge did not refer to all of the evidence, he did not err by failing to do so. In the above words of McLachlin C.J. from R.E.M., the trial judge grappled with the substance of the live issues presented by the trial. The crucial issues were: (i) whether Mr. Severight assaulted Cst. Lariviere; (ii) whether Cst. Lariviere reasonably believed that he was being assaulted; and (iii) if so, whether his response was proportionate. [19] Three witnesses testified as to the incident that gave rise to the charge: Cst. Hoffman and Mr. Severight for the Crown, and Cst. Lariviere in his own defence. Each of the three recounted the incident in slightly different ways. However, the trial judge did not fall into the trap of preferring the evidence of one over the other, but rather drew conclusions regarding what happened based on the whole of the evidence. Indeed, he may very well have accepted the accused’s testimony at face value. [20] The following example taken from the trial judge’s reasoning illustrates how he treated the accused’s testimony. Mr. Severight testified that he told the officers to leave his land only once when Cst. Lariviere brushed away his finger. Mr. Severight also testified that he put his finger in Cst. Lariviere’s face only once. Cst. Lariviere testified that Mr. Severight did it twice and that he actually grabbed the finger rather than brushed it away. On the other hand, Cst. Hoffman testified that Mr. Severight told them twice to leave and that Cst. Lariviere pushed away the finger rather than grabbed it. The trial judge accepted Cst. Lariviere’s statement that the finger incident occurred twice, which formed the basis for him to find that the instruction to leave the yard also occurred twice. These are seemingly minor matters, but they were issues that the trial judge had to resolve in order to gauge: (i) the actual threat, if any, faced by the accused; (ii) the reasonableness of the accused’s belief that he was being threatened; and (iii) the proportionality of his response. [21] While it is true that Cst. Hoffman testified in cross-examination that he was preparing for an altercation and that he was afraid there was going to be fight, the trial judge tested that evidence against what Cst. Hoffman actually did. He noted that Cst. Hoffman “at no time felt endangered, and at no time took any steps such [as] pulling out his baton to deal with dangerous or threatening situation” (at para. 11). This is not an unreasonable conclusion. [22] Capturing all of the nuances of trial in written reasons is difficult task. The trial judge in this case determined what happened on the whole of the evidence based on what he found to be the connections between the evidence of the three witnesses. An appellate court is not entitled to overturn a verdict simply on the basis that the trial judge placed more weight on some portions of the record than others. Conclusion [23] We grant leave to appeal and allow the appeal. In the result, the conviction is restored.

The accused, a member of the RCMP, was convicted after trial of assault with a weapon contrary to s. 267(1)(a). The accused successfully appealed his conviction to the Court of Queen's Bench where a new trial was ordered. The Queen's Bench Judge held that the trial judge's reasons were inconsistent on the whether the accused reasonably believed that he was about to be grievously harmed and that the trial judge erred by not considering the evidence of the other police officer who testified at the trial. The Crown appealed to the Court of Appeal arguing that the summary conviction appeal judge misinterpreted the trial judge's reasons and exceeded the bounds of appellate review. HELD: The appeal was allowed and the conviction restored. The summary conviction appeal court judge erred in finding that the trial judge's reasons were inconsistent. The trial judge engaged in classical alternative reasoning. While the trial judge did not refer to all of the evidence, he did not err in failing to do so. The trial judge grappled with the substance of the issues presented at the trial which were whether the accused had been assaulted by the complainant, whether the accused reasonably believed that he was being assaulted and whether his response was proportionate. The trial judge based his conclusions on the whole of the evidence rather than preferring the evidence of one witness over another. An appellate court is not entitled to overturn a verdict simply because the trial judge placed more weight on some portions of the record than others.

2011skca19.txt

nan Editor's Note: Corrigendum released February 25, 1998. Original judgment has been corrected with text of corrigendum appended. Q.B. A.D. 1997 No. 1781 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ERNEST A.J. HAWRISH and THE LAW SOCIETY OF SASKATCHEWAN, THE BENCHERS, THE COMMITTEES AND THE OFFICERS OF THE LAW SOCIETY OF SASKATCHEWAN RESPONDENTS E.A.J. Hawrish on his own behalf A.T. Snell, Q.C. for the respondents JUDGMENT HRABINSKY J. November 10, 1997 The applicant applies for an order that the respondents be prohibited from any further proceedings or actions in relation to the formal complaint against him, dated December 15, 1988, as amended, alleging that he is guilty of conduct unbecoming barrister and solicitor. The application is made pursuant to The Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1 on the following ground: That the Discipline Committee of the Law Society of Saskatchewan does not have jurisdiction to proceed with any further proceedings against the Applicant on the said complaint by virtue of the fact that the decision of the Hearing Committee, dated July 2, 1997, and upon which the Disciplinary Committee proposes to act, was not provided to the chairperson of the Discipline Committee within 45 days after the hearing of the said complaint, as required by Section 53(1) of The Legal Profession Act, 1990. FACTS In 1988, the applicant, member who was then in good standing with the Law Society of Saskatchewan, was charged with several counts of theft and fraud pursuant to the Criminal Code. The Law Society Investigation Committee report recommended that hearing be held to inquire into substantially the same circumstances as those contained in the criminal charges. On December 15, 1988 the Law Society of Saskatchewan appointed Hearing Committee to hear formal complaint against the applicant. At the first meeting of the Hearing Committee on May 1, 1989, the applicant challenged the jurisdiction of the Hearing Committee to proceed on the basis that he had not been treated fairly by the investigation process and therefore, the Hearing Committee had no jurisdiction. This application was dismissed on May 31, 1989. During the years 1988-1991 inclusive, the applicant was paid-up practising member of the Law Society of Saskatchewan. In 1992 on his undertaking to refrain from the practice of law, the applicant was granted an inactive membership in the Law Society of Saskatchewan. Commencing January 1, 1993 the applicant did not pay an inactive membership fee. The applicant then applied to the Court of Queen's Bench for stay of the Law Society disciplinary proceedings on the ground that those proceedings should be stayed until the criminal matter was complete. The stay was granted August 29, 1989, but was lifted by justice of the Saskatchewan Court of Appeal in January of 1990, to allow counsel for the Investigation Committee to examine witness who was terminally ill. As the criminal matter proceeded through the courts, the Hearing Committee met intermittently, often by telephone conference calls, and the matter was adjourned from time to time, firstly because the court had imposed stay and latterly because the criminal matters were still before the court. The applicant was convicted of one count of theft and two counts of fraud on September 6, 1991. On October 10, 1991, he was sentenced to 18 months imprisonment and was ordered to pay compensation to the victims of his crimes. The applicant appealed the conviction. The appeal was dismissed by the Saskatchewan Court of Appeal on October 14, 1993. The applicant then sought leave to appeal further to the Supreme Court of Canada. The appeal was dismissed by the Supreme Court ofCanada on March 21, 1995 and the Hearing Committeeset August 8, 1995 as the date for a hearing. transcript of the meeting of the Hearing Committee on August and 9, 1995 discloses that the applicant challenged the jurisdiction of the Hearing Committee to proceed with the matter. The Hearing Committee found that it had jurisdiction and proceeded with the hearing. The applicant absented himself from the hearing following the Hearing Committee's decision to proceed. On August 9, 1995 the Hearing Committee unanimously found beyond reasonable doubt that each of the complaints numbered 11, 12 and 13, were well founded and that because the Law Society of Saskatchewan presented no evidence on counts to 10 inclusive, these complaints were dismissed as being unfounded. The transcript of the proceedings discloses that the chairman of the Hearing Committee stated, ". the Hearing Committee will report, in accordance with the Act, its findings to the Benchers." By notice of appeal dated August 24, 1995 the applicant appealed the decision of the Hearing Committee made on August 9, 1995 to the Court of Appeal pursuant to s. 56(1) of The Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1. The applicant applied to the Saskatchewan Court of Appeal challenging the jurisdiction of the Hearing Committee on the basis that he was no longer member of the Law Society. This application was dismissed by the Saskatchewan Court of Appeal on November 18, 1996. On August 25, 1995, the applicant sent facsimile to the Law Society of Saskatchewan requesting that he be heard if any further actions, procedures or sanctions be taken against him. He also requested that he be provided with reasonable notice of any proposed actions. The applicant received no response to his facsimile. He never received copy of the Hearing Committee's report which is dated July 2, 1997 until July 28, 1997. The report of the Hearing Committee is addressed to "The Chairperson of the Discipline Committee". The applicant then sought leave to appeal to the Supreme Court of Canada. Leave was denied on May 22, 1997. The respondents concede that no action was taken with respect to the sentencing of the applicant between August 9, 1995 and May 30, 1997. The respondents say that they were advised that it would be inappropriate for them to proceed in the face of challenge to its jurisdiction. The Hearing Committee provided its report to the chairperson of the Discipline Committee on July 4, 1997. The notice of sentencing dated July 21, 1997 was issued by the chair of the Discipline Committee and was sent to the applicant by registered mail notifying the applicant that sentencing on the matters referred to in the report of the Hearing Committee would be held on Thursday, September 18, 1997. During the period of almost two years since the date of the hearing before the Hearing Committee the applicant has been working at establishing an international consulting business and for this purpose has begun the process of studying for Ph.D. in International Business. (1) Did the Hearing Committee breach s. 53 of The Legal Profession Act, 1990 by providing its report more than 45 days after the hearing? (2) If the answer to the first question is in the affirmative, do the respondents have jurisdiction to proceed further against the applicant? THE LAW The pertinent provisions of The Legal Profession Act, 1990 are: 53(1) hearing committee shall provide its decision to the chairperson of the discipline committee in accordance with the rules, not later than 45 days after the hearing. (5) The chairperson of the hearing committee shall send copy of the committee's decision to the member whose conduct was the subject of the hearing. 56(1) Where complaint against member is determined by the hearing committee to be well founded, the member may appeal the decision of the hearing committee or penalty assessed or requirement imposed by the hearing committee or the discipline committee resulting from the decision to the Court of Appeal within 30 days after the day of the decision or the assessment of penalty or imposition of requirement, whichever is later, by: (a) filing notice of appeal with the registrar of the Court of Appeal; and (b) serving the secretary-treasurer with copy of the notice of appeal. (3) Subject to subsection (4), the commencement of an appeal to the Court of Appeal does not stay the effect of penalty assessed or requirement imposed by the hearing committee or the discipline (4) An appellant, on five days' notice to the secretary-treasurer, may apply to the Court of Appeal for stay of proceedings pending the disposition of the appeal. (emphasis added) Rule 450(10) of Rules of the Law Society of Saskatchewan reads: 450(10) The hearing committee shall, not later than 45 days after completion of the hearing, deliver to the Chairperson of the Discipline Committee written statement of: (a) its findings as to the facts in issue, (b) its decision as to whether each allegation in the formal complaint is well-founded, and (c) the penalty assessed or requirements imposed, if it acts under section 53(3) of the Act. (emphasis added) Section 27(3) of The Interpretation Act, 1995, S.S. 1995, c. I-11.2 provides: 27(3) In the English version of an Act: (a) "shall" shall be interpreted as imperative; and (b) "may" shall be interpreted as permissive and empowering. Counsel for the respondents argues that if this court finds that the Hearing Committee was in breach of s. 53 of The Legal Profession Act, 1990, by providing its decision to the chairperson of the Discipline Committee more than 45 days after the hearing, the s. 53 requirement is not mandatory but directory. find that the Hearing Committee was in breach of s. 53 since the hearing concluded on August 9, 1995 and the Hearing Committee did not provide the chairperson of the Discipline Committee with its decision until July 4, 1997. This is in contravention of the statute. In support of his submission that the s. 53 requirement is not mandatory but directory, counsel has referred to number of decisions including Teskey v. Law Society of British Columbia (1990), 1990 CanLII 8033 (BC SC), 71 D.L.R. (4th) 531. The Teskey decision is distinguishable in that the court dealt with rule which provided that "the Secretary shall promptly notify the respondent in writing of referral to the Benchers .". The court did not deal with statutory requirement, as is the case before me. This court has the jurisdiction to waive rules but does not have jurisdiction to waive statutory requirements. Accordingly, the Teskey decision is inapplicable to the matter before me. The powers of the respondents to regulate and discipline its members is conferred by statute and as such, am of the view that the exercise of such powers must be complied with strictly. In Maxwell on The Interpretation of Statutes, 12th ed. (Sweet Maxwell, London, 1969) at p. 245 the author states: Similarly, statutes dealing with jurisdiction and procedure are, if they relate to the infliction of penalties, strictly construed: compliance with procedural provisions will be stringently exacted from those proceeding against the person liable to be penalised, and if there is any ambiguity or doubt it will, as usual, be resolved in his favour. This is so, even though it may enable him to escape upon technicality. Applying s. 27(3) of The Interpretation Act, 1995, conclude that the word "shall" in s. 53(1) of The Legal Profession Act, 1990, must be interpreted as imperative. It is mandatory. It is not directory. Disciplinary proceedings expose member of the Law Society to punishments including suspension of the right to practice and disbarment. The nature of disciplinary proceedings can have devastating effect on the most valuable asset barrister and solicitor has his or her reputation. This reinforces my view that s. 53(1) must be strictly interpreted. The duty of the respondents is the protection of the rights not only of members of the public but also the members of the Law Society of Saskatchewan. am of the view that the purpose of s. 53(1) of The Legal Profession Act, 1990 is to provide the chairperson of the Discipline Committee with decision of the Hearing Committee within 45 days so that disciplinary matters against its members may be dealt with in timely manner. The process must be completed without undue delay and thus protect the member's interest. This is also implicit in s. 56 of the Act which provides that member may appeal the decision of the Hearing Committee and that the appeal process does not stay the effect of the decision of the Hearing Committee. Section 56(4) provides that an appellant may apply to the Court of Appeal for stay pending the decision of the appeal. Although stay of proceedings was ordered for the period from August 29, 1989 until January, 1990, it was incumbent upon the respondents to move without delay before the stay was granted and after it was lifted on the application of the respondents. This the respondents did not do to the detriment of the applicant's interests. find that the respondents have lost jurisdiction to take further proceedings against the applicant and so order. Leave is given to speak to costs. J. Q.B. A.D. 1997 No. 1781 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ERNEST A.J. HAWRISH and THE LAW SOCIETY OF SASKATCHEWAN, THE BENCHERS, THE COMMITTEES AND THE OFFICERS OF THE LAW SOCIETY OF SASKATCHEWAN RESPONDENTS E.A.J. Hawrish on his own behalf A.T. Snell, Q.C. for the respondents CORRECTION TO JUDGMENT DATED NOVEMBER 10, 1997 HRABINSKY J. February 25, 1998 The last two sentences in the thirdparagraph on p.3 of the judgment should be deletedand the following sentence added:The appeal was dismissed by the Supreme Court ofCanada on March 21, 1995 and the Hearing Committeeset August 8, 1995 as the date for a hearing.

HELD: The last two sentences were to be substituted by the appeal was dismissed by the SCC on March 21, 1995 and the Hearing Committee set August 8, 1995 as the date for a hearing.

e_1997canlii11495.txt

JUSTICE THE COURT OF APPEAL FOR SASKATCHEWAN GORDON SCRIMBIT (Plaintiff) APPELLANT and NED SHILLINGTON (Defendant) RESPONDENT CORAM: The Honourable Mr. Justice Cameron The Honourable Madam Justice Gerwing The Honourable Madam Justice Jackson COUNSEL: Mr. J.G. Garden for the appellant Mr. M. Morris for the respondent DISPOSITION: Appeal Heard: March 9, 1995 Appeal Dismissed: March 9, 1995 (oral) On Appeal From: 4520/86 J.C. Regina Reasons: March 13, 1995 Appeal File: No. 1929 Reasons by: The Honourable Mr. Justice Cameron CAMERON J.A. It will not be necessary to hear from you Mr. Morris. Having regard for the standard of review applicable to this appeal, we can find no tenable basis for interfering with the order made in the Court of Queen's Bench. In other words, Mr. Garden, we have not been persuaded that Mr. Justice Kyle either erred in principle in the exercise of the discretionary powers of the Court to dismiss for want of prosecution where there has been inordinate and inexcusable giving rise to prejudice, or overlooked or disregarded a material consideration, or acted unjudicially. That being so, there is nothing vitiating the exercise by the chamber judge of discretion and no basis for interference by us. Accordingly, the appeal is dismissed with costs to the respondent, such costs to be taxed in the usual way.

The Defendant applied to strike out the Plaintiff's action for want of prosecution. The application was successful. The Plaintiff appealed. HELD: Appeal dismissed. The Court was not persuaded that the Chambers Judge had either erred in principle in the exercise of the discretionary powers of the Court to dismiss for want of prosecution where there has been inordinate and inexcusable delay giving rise to prejudice, or overlooked or disregarded a material consideration, or acted unjudicially.

3_1995canlii3927.txt

J. 2004 SKQB 498 Q.B.G. A.D. 2002 No. 1887 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: DALE HENRY, in the name and on behalf of 609897 SASKATCHEWAN LTD., and GREAT WESTERN BREWING COMPANY LIMITED, GWB HOLDINGS LTD., MAURICE DUVAL, RONALD WALDMAN and VAUGHN WYANT, DEFENDANTS Garth A. Brehon for the plaintiff Quentin D. Agnew for the Board of Directors of 609897 Saskatchewan Ltd. Michelle J. Ouellette for the defendants FIAT FOLEY J. December 8, 2004 [1] By fiat of December 5, 2002, Gerein C.J. authorized the initiation of derivative action by Dale Henry (Henry) on behalf of 609897 Saskatchewan Ltd. (609). By fiat of May 27, 2004, I ruled that the defendants in the action were entitled to examine a representative of 609 for discovery and that Henry was obliged to appoint counsel for 609 in the action. [2] In September 2004 clarification of my earlier fiat was requested and, with the consent of Mr. Brehon for the plaintiff, Ms. Ouellette for the defendants and Mr. Agnew for the board of directors of 609, the matter proceeded by conference call and written submissions. [3] The questions raised were: 1. Who is responsible for the cost of the counsel appointed by Mr. Henry 609 or Mr. Henry? 2. Is that counsel responsible in any way to Mr. Henry? 3. Can that counsel be member of the Rask Law Firm? 4. Does Mr. Henry’s counsel have any right to examine Mr. Kitz (assuming for purposes of this discussion that Mr. Kitz is the proper officer to be examined on behalf of 609)? 5. Does the right of counsel appointed to represent 609 to question Mr. Kitz at the end of examination by the Defendants mean simply the “normal right of re‑examination” on Examination for Discovery, or does it extend further? 6. Does the Defendants’ right to examine Mr. Kitz as representative of 609 include the right to request production of documents in the possession or control of 609 by way of undertakings at the Examination, and if so, who has the right to claim privilege on any such documents 609 through its appointed counsel or Mr. Henry through his counsel? 7. As corollary to the above question, whether there is any right of privilege as between 609 and Mr. Henry; if so, how is it claimed and are such documents privileged as between the Plaintiff and Defendants? Who is responsible for the cost of production of any such documents? [4] These questions, together with the disparate positions taken by the participants in their written submissions, demonstrate confusion and misunderstanding as to the nature of the action and consequently of a party’s rights and responsibilities within the action. [5] Some of the misunderstandings have their genesis in the pleadings which recite the plaintiff to be Henry, capacity which the defendants admit. As noted in my earlier fiat, the plaintiff is and was 609. Contrary to Mr. Brehon’s position the action remains derivative one in which the action by plaintiff 609 proceeds for the benefit of 609 against those it alleges to have caused it loss or damage. [6] In Phillips, Personal Remedies for Corporate Injuries (Toronto: Carswell, 1992), at page 402, the author states: If leave is granted, the applicant gains the right e.g. to “bring an action” on the company’s behalf. This is simply the right to instruct counsel in connection with such an action, it is not right to appear personally in court on behalf of the company in such an action. Note that the person instructing company’s counsel is exercising some of the authority that is normally possessed by the company’s directors. Just as that authority has caused the courts to view company’s directors as its fiduciaries, so it should cause the courts to view that person as one the company’s fiduciaries too. That is the American view, although there it is sometimes attributed to the apocryphal “fact” that the person in question represents the shareholders which flows from the incorrect view of derivative action as class action on behalf of the shareholders and not to the real fact that the person in question represents the company. [7] Phillips (supra) also observes that derivative action differs from normal corporate action on issues of privilege, cooperation, costs, settlement and personal awards. Explanations of the relationship between persons such as Henry, at whose behest derivative action is commenced, with the corporate plaintiff have been made by drawing analogies with other legal relationships such as those of litigation guardian/infant, trustee/beneficiary or agent/principal. [8] find it instructive in light of the above noted specific questions to compare this derivative action brought despite the objections to the action by 609’s board to that of subrogated action brought in the name of corporation by its insurer. The board of the insured does not control the subrogation action any more so than will the board of 609 in this case. The subrogating insurer usually sues in the name of its insured and appoints its own counsel for the action who then conducts the litigation without deferring to or necessarily adhering to the wishes of the insured’s board of directors. Such an insurer is entitled (albeit by terms of the insuring agreement) to the full cooperation of the board, its officers and corporation’s employees in furthering the subrogated action. [9] This particular analogy serves for the limited purpose of demonstrating that even though this action is brought in 609’s name and control of the action does not lie with 609’s board but rather is vested in Henry, issues of disclosure, privilege and reporting as raised by the above noted questions are capable of resolution utilizing analogous proceedings without doing violence to fundamental principles in the litigation process. [10] As a corporation may only litigate with legal representation, Henry is empowered and obliged to appoint counsel for 609. Whether that counsel is Mr. Brehon, another member of his firm or someone from outside that firm is entirely matter for Henry. Such counsel is entitled to access to the relevant documents, records and employees for the purposes of the action, including preparation of a statement as to documents and following the modified discovery process set out in my earlier fiat. [11] It follows that Henry and that counsel have professional and fiduciary obligations to 609. The nature of the action is such that Henry’s overall instructions to counsel should not be in conflict with the interests of 609 as Henry is obliged to advance the corporate interests in the derivative action. He was appointed for that purpose and is obliged to so instruct 609’s counsel. [12] Insofar as questions and raise the issue of costs in prosecuting the action Gerein C.J. in his fiat directed that “[t]he respondent corporation should not at this time be required to fund the action” [emphasis added] as, inter alia, no evidence of quantum of legal fees was provided and the merits of the action were difficult to assess at this early stage. These concerns still pertain and consequently, without prejudice to renewal of the application for cost reimbursement when the concerns expressed by the Chief Justice can be allayed, the costs in first instance remain with Henry. [13] Questions 4, and the first branch of fall to be resolved on the basis of the existing rules of court and the applicable jurisprudence, it not having been yet demonstrated that this aspect of the proceedings warrant modification of the rules. [14] The second branch of question and the first branch of question are self‑evident once one accepts the unity of interest between Henry and 609 which is necessarily reflected in the decision authorizing the derivative action. It follows that relevant documents will need to be disclosed and any issue of privilege related to those documents dealt with in accordance with accepted principles. The issue of cost of production of documents for the statement as to documents is presently to be resolved in the same manner as set out above dealing with costs generally. [15] As no formal motion was brought in this proceeding and the matter proceeded with all parties consenting, there shall be no order as to costs. I do wish to emphasize that, henceforth, it is the plaintiff and the defendants who have status in these proceedings and not Henry in his personal capacity nor the board of directors of 609.

FIAT: By fiat of December 5, 2002, Gerein C.J. authorized the initiation of a derivative action by Dale Henry (Henry) on behalf of 609897 Saskatchewan Ltd. (609). By fiat of May 27 2004, the Court ruled that the defendants in the action were entitled to examine for discovery a representative of 609 and that Henry was obliged to appoint counsel for 609 in the action. In September 2004, clarification of the May 27 2004 fiat was sought. HELD: The questions raised by the parties together with the disparate positions taken by the participants demonstrate the confusion as to the nature of the action and of a party's rights and responsibilities within the action. The action is a derivative one in which the action by plaintiff, 609, proceeds for the benefit of 609 against those it alleges to have caused it loss or damage. Henry is empowered and obliged to appoint counsel for 609. Such counsel is entitled to have access to the relevant documents, records and employees for the purposes of the action. It follows that Henry and that counsel have professional and fiduciary obligations to 609. Henry's overall instructions to counsel should not be in conflict with the interests of 609 as Henry is obliged to advance the corporate interests in the derivative action. As no formal motion was brought in this proceeding and the matter proceeded with all parties consenting, there shall be no order as to costs. Henceforth, it is the plaintiff and the defendants, who have status in these proceedings, and not Henry, in his personal capacity, or the board of directors of 609.

2_2004skqb498.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 445 Date: 2009 11 13 Docket: Q.B.G. No. 703/2009 Judicial Centre: Saskatoon BETWEEN: TREVOR WAYNE ANDERSON, and HER MAJESTY THE QUEEN, Counsel: Mark Brayford, Q.C. and Glen E. Luther for the applicant Craig D. Neely for the respondent Crown JUDGMENT MILLS J. November 13, 2009 [1] The accused is facing 24‑count indictment generally associated with allegations of involvement in the sale of controlled substances and matters ancillary thereto. This motion, under ss. 7, 11(d) and 24 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”), is for an order that the accused “be provided with full disclosure in useable format”. The motion has two separate components. The first relates to the method in which disclosure has been provided, “the usable format”. The second is whether full disclosure that would allow the accused to provide a full answer and defence has been provided. The second issue is to be dealt with by “Laporte inventory”, named for the procedure in R. v. Laporte (1993), 1993 CanLII 6773 (SK CA), 113 Sask. R. 34 (C.A.). Statement of issues [2] The issues are: 1. Was the disclosure provided to the defence in usable format? 2. In the circumstances of this case, is it appropriate for the Court to embark upon Laporte inquiry and make the appropriate order, if any, regarding further disclosure, or should that issue be left to the trial judge? 3. If the answer to No. is yes, what is the appropriate order to make on the materials filed? 1. Was the disclosure provided to the defence in usable format? Background facts [3] Counsel for the defence has been provided with disclosure of all documents involved in this prosecution by way of electronic data stored on hard drive. Counsel for the defence has the skill, sophistication and equipment to access the electronic data. This is not case where the defence seeks hard copies of documents because their computer literacy skills are deficient. [4] There are some 30,000 to 40,000 pages of disclosure made to the defence. In addition, 275 audio files, 50 video files and large series of photos have also been provided. [5] It is appropriate to provide some basic information regarding the nature of the disclosure provided so far. In response to the motion, the Crown called Michelle Fountain, civilian member of the Royal Canadian Mounted Police (“RCMP”), whose function was to assemble files for disclosure purposes. She used proprietary software to organize the data received from the police investigation. Some data came to her in electronic form. Some data came in hard copy, which was scanned into an electronic form. Some came by way of audio or video file. She organized data by task. She used five‑year‑old laptop and Adobe Acrobat Reader to demonstrate the accessibility of the disclosure provided. [6] Ms. Fountain demonstrated how the data would be searched when the accused wishes to obtain information in relation to other people involved in the police investigation; this would be available by reference to specific task. For instance, information related to Rhonda Vermette, subject of the investigation, could be obtained through searching the task headed “inquiry”, then search of her name. It could also be accessed by going to the task entitled “Vermette”. This organizational system is the same one used by the Crown in preparation for trial. This system is not organized to be specifically helpful to the defence or to provide the defence with custom access to particular area of interest to them. The RCMP supplied the Adobe Acrobat Reader software, along with the codes to access the tasks involved, to defence counsel. Ms. Fountain personally assisted defence counsel in understanding the software utilized and how to search the data for specific information. She continues to be available for that purpose if required by defence counsel. She is only available during regular working hours and then, of course, if not occupied on another project. [7] As part of the disclosure, the RCMP prepared Crown brief, which is 60 pages long. The brief details the theory of the Crown in general terms and uses blue text to link important information to evermore specific data contained in the disclosure. For instance, if specific piece of information relating to surveillance was contained in the Crown brief, there would be link to information related to the surveillance, which would include documents, photos, exhibits, etc. If documents were linked, you would go to the documents and see what documents by date and activity were referred to. Cross‑referencing of all the background information, including the police officers’ notes, were available; however, they were by task first and then by date. Once you have got to the officers’ notebooks, an actual copy would appear as it relates to that specific task. You would not be able to simply call up and print in chronological order all of the particular officers’ notes associated with the investigation. The notes as disclosed are available to the defence but would require significant time in locating and collating for an individual officer’s notebook. The defence acknowledged that the purpose in obtaining the chronological order of particular officer’s notebook relates to ease of cross‑examination in relation to the issue of whether valid search warrant had been issued. The defence complains that it is cumbersome to obtain notes in this fashion, and you end up getting the officer’s notes sorted by task but not by date. Legal Analysis [8] The defence does not seek hard copy of any documents that were created in computer. The defence does not seek hard copy of any document created on paper and scanned into the computer unless the document “has been, or will be, utilized by the police or the Crown in hard copy”. The defence does seek photocopies of all officers’ notebooks organized by date and officer. The basis of the defence’s argument is, firstly, equality of use or level playing field should be created with respect to the provision of documents utilized by the Crown and, secondly, trial fairness requires the particulars of the police officers’ notes be provided in the format requested. The defence argues that if the Crown is going to be using paper copies of some documentation because it finds that use more convenient and effective, then the defence should be provided with the same paper copies to level the playing field. This is reasonable request. Both Crown and defence essentially agree on this concept. The Crown states there is an obligation for disclosure in general terms in slightly different fashion. The question is not providing simply usable format for the defence but that the disclosure should be provided in manner that is reasonably accessible by the defence. In some cases, it would be hard copies of all documents. In others, it would be by way of electronic disclosure or, in some situations, combination of the two. The Crown states the choice is theirs, so long as the disclosure is reasonably accessible. See R. v. Therrien, 2005 BCSC 592 (CanLII), 72 W.C.B. (2d) 116, and R. v. Piaskowski, 2007 MBQB 68 (CanLII), [2007] W.W.R. 323. [9] The difference between the defence terminology of “usable format” and the Crown’s “reasonably accessible” is one of semantics from each of their subjective approaches. One would surmise that for document to be reasonably accessible, it would have to be in usable format. The issue that has arisen in other cases has been whether the method of disclosure meshed with the particular lawyer’s skills as opposed to general skills that all lawyers should have. In R. v. Jonsson, 2000 SKQB 377 (CanLII), [2001] W.W.R. 325, Klebuc J. (as he then was) stated: [14] Whether production on computer diskettes or CD‑ROM’s is adequate will vary with the sophistication of the accused and his or her counsel’s ability to access data stored thereon. However, the day will soon come when the ability to operate personal computer and retrieve data stored on computer disks and related media by means of software programs designed for general public use will be core competency requirement for counsel who wish to act in cases involving voluminous amounts of data. It appear to me that that day has come. [10] The defence wants: (a) the same documents in the same format to be utilized by police and Crown during the investigation and at trial; and (b) police officers’ notes in hard copy arranged by officer and date. The defence does not argue the issue that they do not have disclosure in reasonably accessible form, except for police officers’ notebooks, but they do not have it in the same form as the Crown. [11] The evidence and argument at the hearing does not support that contention. From the standpoint of trial fairness, the Crown has the same documents organized on the hard drive in the same fashion the defence has. The organization by task reference is useful to the Crown in proving their case. As indicated, it is not formatted to assist defence directly; however, the basic premise of any case is the fact that the accused is presumed innocent and that the Crown must prove their case against him/her beyond reasonable doubt. It would seem logical that the starting point for any defence preparation would be the actual evidence to be utilized by the Crown at trial. That allows the defence to assess their ability to challenge that evidence in order to discredit it and to assess the evidence to determine if, on an evidentiary basis, it would be wise for the defence to call contradictory or explanatory evidence. The utilization of the cross‑referencing feature is valuable to both Crown and defence. While Crown counsel acknowledges the defence should be entitled to hard copies of any documentation used by the Crown at trial, he does not extend that acknowledgment to any disclosure that previously had been or may be in the future utilized by the police in hard copy. The word “utilized” has very general meaning, and in one sense, given that the police prepared written document in the course of the investigation, it could be said to be utilized by them in written form; therefore, hard copies of all these documents would be necessary. The Crown has stated that on any occasion on which, as result of review of the electronic data, anything is printed by him, second printed copy is forwarded to the defence. So far, in excess of 300 documents have been provided to the defence in this fashion. The Crown has stated that it intends to continue following such process. Insofar as the utilization of hard copies for trial preparation that is sought by the defence, this appears to be reasonable resolution on the issue of trial fairness. [12] Presumably, excerpts from the police officers’ notebooks dealing with their trial testimony, if printed, would also be provided to defence counsel in preparation for trial. Defence counsel has candidly advised that the issue surrounding the defence of serious drug charge usually starts with the validity of the search warrant, and the information utilized by the police in obtaining the search warrant is crucial, not just the information that was provided to the official issuing the warrant but any information that may have been withheld. The affidavits in support of the search warrants in this case are easily found in the database, and cross‑referencing to the police officers’ notes in support of that information is available. What is not easily available and, for the purposes of the Crown, not relatively important is the balance of the information that may have been obtained by the officer not disclosed in the affidavit. This information is often crucial for the defence. [13] Given the nature of the organization of the data by the Crown, the cost of obtaining the police officers’ notebooks in full, in chronological order for pre‑trial examination and trial cross‑examination is significant, not just in terms of printing costs, but in counsel’s time in locating it. In this case, given the nature of the charges, the number of police officers involved in the investigation leading up to the issuance of the warrants and the relative ease and cost of obtaining hard copies, the Crown should provide hard copies of the notes made by police officers in their notebooks. It is ordered that the notes of those officers which provided information for the issuance of the search warrants have to be provided in hard copy in chronological order. It is ordered that the notebooks of those officers who will be testifying at trial are to be provided to the defence in hard copy in chronological order. The notebooks of those officers not involved in gathering information involved in the issuance of the search warrants and those not testifying at trial do not have to be provided in hard copy but, of course, they are still available to the defence through the electronic disclosure. There are some 75 police officers that are involved in the investigation, but not all of them will be testifying at the trial, nor have all been involved in relation to the issue of information surrounding the issuance of search warrants. [14] There is no need for the Crown to provide copies of any officers’ notebooks in hard copy and chronological order that postdates the laying of the charges or the issuance of search warrants, whichever is dated later. [15] In all other respects, the nature and format of the disclosure provided to date is appropriate in that it has been provided in a reasonably accessible manner which does not detract from the right of the accused to make full answer and defence. [16] very useful discussion of electronic disclosure and the issues involved is found in R. v. Piaskowski, supra, in which Sinclair J. reviewed extensively the discussion regarding the general use of electronic disclosure as opposed to paper disclosure. [17] Excepting for the police officers’ notebooks as indicated previously, the format provided, in my opinion, is, in fact, beneficial to the defence over being faced with 30,000 paper documents. Indeed, it would appear that the preferable method is electronic disclosure to allow defence meaningful ability to digest, review and call up the relevant documents in timely fashion. 2. In the circumstances of this case, is it appropriate for the Court to embark upon Laporte inquiry and make the appropriate order, if any, regarding further disclosure, or should that issue be left to the trial judge? 3. If the answer to No. is yes, what is the appropriate order to make on the materials filed? [18] During the course of argument and discussion and concessions by the Crown, it was appropriate that the issue of the Laporte inventory be adjourned to allow Crown counsel an opportunity to review some of the source documents in relation to the search warrant to determine whether any objection to them would be removed and to review its position with respect to the question of grounds of privilege. Defence counsel and Crown agreed that Issues No. and are to be adjourned. The adjournment of these issues was conceded by defence and Crown to have no impact on the ability of the preliminary hearing to proceed.

The accused is faced with a 24 count indictment associated with allegations of involvement in the sale of controlled substances. The motion, made pursuant to s. 7, 11 and 24 of the Charter of Rights is for an order that the accused 'be provided with full disclosure in a useable format'. The motion has two components. The first relates to the method in which disclosure has been provided, the 'useable format'. The second is whether full disclosure that would allow the accused to provide a full answer and defence has been provided. The second issue is to be dealt with by a 'Laporte inventory', name for the procedure in R. v. Laporte (1993), 113 Sask. R. 34 (C.A.).HELD: 1) There are some 30,000 to 40,000 pages of disclosure made to the defence. In addition, there are 275 audio file, 50 video files and a large series of photos. The defence seeks photocopies of all officers' notebooks organized by date and officer. The basis of the defence's argument is firstly, equality of use or a level playing field should be created with respect to the provision of documents used by the Crown and, secondly, trial fairness requires the particulars of the police officers' notes be provided in the format requested. The defence argues that if the Crown is going to be using paper copies of some documentation because it finds that use more convenient and effective, then the defence should be provide with the same paper copies to level the playing field. 2) The defence has candidly advised that the issue surrounding the defence of a serious drug charge usually starts with the validity of the search warrant, and the information used by the police in obtaining the search is crucial, not just the information that was provided to the official issuing the warrant but any information that may have been withheld. The affidavits in support of the search warrants in this case are easily found in the database, and cross- referencing to the police officers' notes in support of that information is available. What is not easily available and, for the purposes of the Crown, not relatively important is the balance of the information that may have been obtained by the officer not disclosed by affidavit. This information is often crucial for the defence. 3) In this case, given the nature of the charges, the number of police officers involved in the investigation leading up to the issuance of the warrants and cost of obtaining hard copies, the Crown should provide hard copies of the notes made by police officers in the notebooks. It is ordered that the notebooks of those officers who will be testifying at trial are to be provided to the defence in hard copy in chronological order. In all other respects, the nature and format of the disclosure provided to date is appropriate in that it has been provided in a reasonably accessible manner which does not detract from the right of the accused to make full answer and defence. 4) A useful discussion of electronic disclosure and the issues involved is found in R. v. Piaskowski, 2007 MBQB 68, in which the Court reviews extensively the use of electronic disclosure as opposed to paper disclosure.

2009skqb445.txt

nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 31 Date: 20040309 Between: Docket: 906 [J.D.L.] Appellant (Respondent) [T.E.T.] Respondent (Applicant) Before: Jackson J.A. (in Chambers) Counsel: E.F. Anthony Merchant, Q.C. for the Applicant (Respondent) Tiffany M. Paulsen for the Respondent (Appellant) Appication: From: FLD 463 of A.D. 1998, J.C. of Saskatoon Heard: March 5, 2004 Disposition: Dismissed Written Reasons: March 9, 2004 By: The Honourable Madam Justice Jackson JACKSON J.A. [1] On this application to lift the stay imposed by Rule 15 on the judgment of Klebuc J. dated February 25, 2004, I decline to do so for these reasons. [2] believe this case is more like Faber v. Retzlaff,[1] Fiacco v. Fiacco[2] and Fick v. Fick [3] than Latsay v. Latsay,[4] Kuhn v. Bitternose,[5] Burke v. Burke[6] and Murray v. Murray.[7] In the former cases, the chambers judge determined that the best interests of the children required the status quo to be maintained. reach the same conclusion in this case. [3] While father’s counsel argues that the delay since interim reasons were filed on December 4, 2003 has resulted in new status quo, there has been one occasion only during that period when the children did not have access to both parents in any six-day period (leaving aside the January vacation which appears to be part of the status quo). This is to be contrasted with the access proposed by the father for the upcoming two months which would see the children not having overnight access, or indeed, any access, to their mother during four six-day periods until the appeal is heard. [4] note also that my decision parallels that of Gerwing J.A. who decided on February 25th, on an interim basis, prior to the final reasons being filed, not to lift the stay, and to maintain the schedule existing prior to the decision under appeal. As it turns out, final reasons were filed that day, but because notice of appeal in relation to those reasons was filed almost immediately, Wright J.’s order came into effect and has been in effect for the past two weeks. [5] Accordingly, the parties are to be governed by the order of Wright J. unless otherwise agreed and until further order. For greater clarity, they are now in week no. as described in that order. [6] Under the order of Wright J., $600.00 maintenance is payable by the father on the first of each month. Klebuc J. did not order either the father or the mother to pay maintenance. The judgment roll “vacates” the order of Wright J. [7] Since have refused to lift the stay, the immediate question is the effect of my order on the obligation to pay maintenance. The first issue that arises in considering this question is whether it is appropriate for me to interpret the effect of my order declining to lift the stay. [8] Since oral argument, when the mother assumed that maintenance would be paid, the father’s counsel filed detailed brief arguing that staying the execution of Klebuc J.’s judgment does not revive the prior maintenance order and that Court of Appeal chambers judge does not have the authority to make such an order. [9] My decision reviving the custody and access provisions in place prior to Klebuc J.’s order gives the mother custody of the children for slightly more than 50% of the time. This raises the question as to whether she has sufficient resources to care for these children appropriately. Given all the circumstances of this case, it appears that Wright J. was of the view the mother did not when she imposed the maintenance order of $600.00. [10] While a chambers judge acting under section 20 of The Court of Appeal Act[8] may not have the independent authority to make a maintenance order, a chambers judge has the authority to stay a judgment in its entirety in the Court of Queen’s Bench in certain cases as long as doing so does not decide the appeal. On this point see the dicta in Re Blackwoods Beverages Limited et al.[9] and International Harvester v. Baschuk.[10] [11] The fact that we are dealing with relatively short period of time cannot be determinative of whether maintenance should be payable particularly in light of Wright J.’s order. Accordingly, the decision of Klebuc J. is stayed, which leaves the order of Wright J. in place. This decision leaves the effect of stay of execution in case such as this one for consideration on another day, but nonetheless maintains the existing maintenance obligation. The father is to pay $600 maintenance for March 1st as soon as is reasonably possible and for April 1st on that day. [12] The mother is directed to file her appeal book and factum 15 days after receiving the transcript (which should be March 15, 2004 or shortly thereafter). The father is directed to file his factum 15 days after receiving the mother’s factum. The appeal is fixed for hearing on Monday, May 3, 2004. [13] Costs are left to the division of the court hearing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 9th day of March, A.D. 2004. Jackson J.A. [1](1986), 1986 CanLII 3262 (SK CA), 50 Sask.R. 243 (Sask. C.A.). [2](1988), 1988 CanLII 5102 (SK CA), 68 Sask.R. 40 (Sask. C.A.). [3](1993), 1993 CanLII 6598 (SK CA), 109 Sask.R. 67 (Sask. C.A.). [4][1989] S.J. No. 34 (Sask. C.A.) (QL). [5](1991), 1991 CanLII 8019 (SK CA), 33 R.F.L. (3d) 25 (Sask. C.A.). [6][1993] S.J. No. 681 (Sask. C.A.) (QL). [7](1995), 1995 CanLII 4025 (SK CA), 134 Sask.R. 273 (Sask. C.A.). [8]R.S.S. 1978, c. C-42. [9](1956), 18 W.W.R. (N.S.) 481 at 486 (Sask.C.A.). [10](1985) 44 Sask.R.228 (C.A.).

This was an application to lift the stay imposed by Rule 15 of The Court of Appeal Rules. HELD: The Court declined to lift the stay. While a chambers judge acting under s. 20 of The Court of Appeal Act may not have the independent authority to make a maintenance order, a chambers judge has the authority to stay a judgment in its entirety in the Court of Queen's Bench in certain cases as long as doing so does not decide the appeal. The Court of Appeal stayed the decision of Klebuc J., which left the order of Wright in place, which maintained the existing maintenance obligation.

e_2004skca31.txt

S.C.C. No. 02790 NOVA SCOTIA COURT OF APPEAL Matthews, Chipman and Pugsley BETWEEN: HER MAJESTY THE QUEEN and LYNDON EUGENE EMMERSON Respondent Robert E. Lutes for the Appellant Anne M. Copeland for the Respondent Appeal Heard: April 14, 1993 Judgment Delivered: April 14, 1993 THE COURT: Leave to appeal permitted, the appeal allowed, the sentence set aside and in its place the respondent is sentenced to two years in a federal institution to be followed by probation for one year on the terms and conditions as set out in the probation order of the trial judge per oral reasons for judgment of Matthews, J.A.; Chipman and Pugsley, JJ.A. concurring. The reasons for judgment of the court were delivered orally by: MATTHEWS, J.A.: The respondent pled guilty to a charge that on October 21, 1992, at Lower Sackville he stole a sum of money from Angela Murray when armed with an offensive weapon, a tire iron, contrary to s. 344 of the Code. On October 23, 1992 his sentence was suspended for three years. A probation order was imposed. The Crown now seeks leave to appeal and if that be granted, appeals from that sentence. The robbery took place at Green Gables convenience store at about a.m. $23.00 was taken of which $14.00 was recovered. In suspending sentence the trial judge said: "Mr. Emmerson, am going to suspend sentence. think, despite what happened that night and despite what the Court of Appeal has said regarding the bench mark for this type of robbery, this is your first offence and am going to give you chance, but by suspending sentence, don't think you are getting off lightly, because am going to suspend it for three years and you are going to be on probation for all of that period of time, and if you get in any more trouble with the law, you can be brought back to this court and you can be sentenced on not only whatever trouble you get into then but on this offence, as effectively then as could today. So, in other words, this is your one chance. If you get involved in any more trouble with the law, you will be going to jail not only for what you do then but for what you have done today...or you certainly could be." At the time of the offence the respondent was celebrating his 21st birthday. He started off the evening on alcohol and ended up on cocaine. He craved more of the drug. As his counsel said at sentencing "It took him three times of going into the store to work up the nerve to do what he thought he would do to get some money". Events went downhill for the respondent after that. He only obtained $23.00 for his efforts; his crime was recorded by video camera in the store; his get away car ran out of gas; when walking back to his car after obtaining gas from service station he lost his way and sought directions from two men in parked vehicle. They were police officers. After his arrest he gave an inculpatory statement and expressed remorse. He has grade 11 education, was unemployed and has an admitted drug problem with crack cocaine. This is his first offence. It was not the work of sophisticated professional criminal. He informed the trial judge that he wanted help for his addiction problem. This court on many occasions has stated that crimes such as break and enter, theft and robbery to obtain funds to satisfy drug problem must be dealt with severely. problem with drugs or alcohol should not be considered as mitigating factor. We are cognizant of the fact that armed robberies of convenience stores late at night or early in the morning are all too prevalent and many of these are perpetrated by persons seeking money with which to purchase drugs. We do recognize that there are special circumstances which may take case out of the ordinary. suspended sentence, properly administered, is rigorous. As the trial judge remarked, should there be violation of the conditions of probation or if the offender is convicted of another crime, then not only is the offender sentenced for the new offence but for the one which had been suspended. This was crime of violence. As such the overriding consideration must be deterrence, both specific and in particular, general. As this court said in R. v. Perlin (1977), 23 N.S.R. (2d) 66, "... save for exceptional cases substantial terms of imprisonment must be imposed". In R. v. Hingley (1977), 19 N.S.R. (2d) 514, Chief Justice MacKeigan remarked at p. 544: "We must begin with the premise that armed robbery and robbery with violence require strongly deterrent sentences of imprisonment. Only where such an offence is isolated, minor, and committed, perhaps impulsively or drunkenly by very young person or one of previously good character, should sentences as low as two or three years' imprisonment be considered." While suspended sentence may possibly assist in the reformation and rehabilitation of the respondent, there is no indication on the facts of this case that this desired goal may be so achieved. Certainly this disposition will not deter others from committing similar offences. With deference, the trial judge recognized that her disposition was "... despite what happened that night and despite what the Court of Appeal has said...". The Crown had recommended two to three years incarceration and defence concurred with federal sentence if there was to be choice between "a long provincial term or short federal time". Sentencing must reflect the individual nature of the offence and the offender. In our opinion although there are some mitigating circumstances here they are not such as to call for a suspended sentence considering the serious nature of the offence and its prevalence. The sentence is not fit. We permit leave to appeal, allow the appeal, set aside the sentence imposed and in its place sentence the respondent to two years in a federal institution to be followed probation for one year on the. terms and conditions as set out in the probation order of the trial judge. In addition prohibition order under s. 100(1) of the Code should have been imposed by the trial judge. We order that the respondent be prohibited from having in his possession any firearm or any ammunition or explosive substance for a period of time commencing on the day the order is made and expiring five years after the time of the respondent's release from imprisonment. J.A. Concurred in: Chipman, J.A. Pugsley, J.A. CANADA PROVINCE OF NOVA SCOTIA 1992 S.C.C. No. 02790 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION ON APPEAL FROM THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus LYNDON EUGENE EMMERSON HEARD BEFORE: Her Honour Judge Anne E. Crawford, J.P.C. PLACE HEARD: Bedford, Nova Scotia DATE HEARD: October 23, 1992 CHARGE: That he at or near Lower Sackville, in the County of Halifax, Nova Scotia, on or about the 21st day of October, 1992, did steal from Angela Murray sum of money while armed with an offensive weapon, to wit: tire iron, contrary to Section 344(d) of the Criminal Code of Canada. COUNSEL: Gregory Lenehan, Esq., for the Prosecution Ms. Ann Copeland, for the Defendant C‑A‑S‑E 0‑N A‑P‑P‑E‑A‑L S.C.C. No. 02790 NOVA SCOTIA COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN and LYNDON EUGENE EMMERSON Respondent REASONS FOR JUDGMENT BY: MATTHEWS, J.A.

The respondent was given a three-year suspended sentence and placed on probation after pleading guilty to armed robbery. He stole $23 from a convenience store, while armed with a tire iron. At the time, he was celebrating his birthday and was inebriated. This was his first offence. The Crown appealed the sentence. Allowing the appeal, setting aside the sentence and imposing a sentence of two years in a federal institution, followed by one year probation, with an order prohibiting possession of firearms following release. Although there were some mitigating factors, they were not such as to call for a suspended sentence considering the serious nature of the offence and its prevalence.

d_1993canlii3207.txt

J. 2000 SKQB 572 Q.B.C. A.D. 1999 No. 50 J.C.P.A. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: HER MAJESTY THE QUEEN B. J. T. J.E. Syrnick for the Crown E.B. Stephens for the accused JUDGMENT BAYNTON J. December 11, 2000 The Nature of the Case [1] The accused is charged with sexual assault pursuant to s. 271 of the Criminal Code. The unique aspect of this case is that although the DNA evidence establishes that the accused had sexual intercourse with the complainant, neither the accused nor the complainant, due to their respective self-induced states of intoxication, have any memory of the sexual intercourse that took place between them. This is the second case that have heard this year that involves gross intoxication on the part of not only the accused but the complainant as well. Such cases are becoming more numerous and pose problems for the court that are not encountered in most sexual assault cases that are heard. will outline these problems and review the special provisions in the Criminal Code that apply to such cases. [2] Judges and juries determine the facts of any given case from the raw material (i.e. the evidence) that is presented by the witnesses who are called to testify. The accuracy of this fact finding determination depends on the quality of this testimonial evidence. The finder of fact assesses the quality of the evidence by means of two-fold process. The first step involves determination of the credibility of witness. Obviously if the witness is lying, his or her evidence is false and is of no value. The second step is the determination of the reliability of the evidence of the witness. Even an honest witness may be mistaken about what he or she saw or heard. The trier of fact must assess the capacity of the witness to accurately recall and relate what he or she honestly believes was seen or heard. [3] It is difficult and sometimes dangerous for the trier of fact to place much reliance on the evidence of witnesses, including complainants and accused persons, who come into court and testify about events that occurred before, during or immediately after period of time during which they were in drunken condition. Even if they are honest witnesses, the reliability of their evidence is suspect. This is so because the consumption of quantity of alcohol or drugs that is sufficient to cause person to become intoxicated, detrimentally affects and distorts not only his or her current perception of events but as well his or her subsequent recall of those events. At extreme levels of intoxication, such as in the case before me, the person is left with no recall whatsoever of those events. Obviously such person does not make reliable witness, even if that person is honest and truthful, because he or she can only speculate about those events. [4] In sexual assault cases, the self-induced gross intoxication of the complainant and the accused before, during and immediately after the alleged assault, poses an even greater evidentiary challenge to the court. How reliable is the complainant’s denial of consent where the complainant has no memory of the occurrence? Likewise, how reliable is the accused’s assertion of consent, or honest belief in consent, where the accused has no memory of the occurrence? [5] Such cases also raise unique legal issues including s. 33.1 of the Criminal Code that was enacted by Parliament in response to R. v. Daviault (1994), 1994 CanLII 61 (SCC), 33 C.R. (4th) 165 and s. 273.1(2)(b) of the Criminal Code which provides that there can be no consent if the complainant is incapable of consenting. [6] The following are the facts that have determined as best as can from the unreliable evidence that heard during the trial. The complainant is the sister of the accused’s spouse. The accused, his spouse and the complainant are all from the small northern community of B[…]. They came to Prince Albert to attend seminar and, along with several other relatives, were staying overnight during the week in question at the home of second sister of the complainant. Everyone at the home, except for the children, were engaged in an extended drinking binge that involved alcohol and drugs. Each of the adults either became intoxicated or were already intoxicated on the evening before the complainant and the accused had sexual intercourse. Both the complainant and the accused were grossly intoxicated. [7] The testimony given by the adult witnesses was confused and muddled as to the sequence of events on the morning in question and the previous evening. This was so because their memories and recollections were substantially and detrimentally affected by the significant quantities of alcohol that they consumed during that period of time. An agreed statement of facts was filed at trial in which the accused admitted that his semen was present on the vaginal swab taken from the complainant. This dispensed with the necessity for the Crown to call DNA evidence to establish this fact. There is accordingly no dispute that the accused and the complainant had sexual intercourse on the morning in question or the previous evening. find as fact, for the reasons given later, that it took place sometime between 10:00 a.m. and 11:00 a.m. on the day in question. [8] The sister who owns the house testified that she too had been drinking all evening and was intoxicated by the time she left the group the next morning to go to her bedroom to sleep. She noticed that the complainant had already passed out and was lying on the sofa in the living room. She recalls that the accused remained in the dining room sitting and drinking at the table with several other relatives, some of whose names she could not remember. Nor could she remember the hour of the morning when she left to go to bed. She says she got up for few minutes later that morning to get some juice and observed that everyone was still drinking at the dining room table. She said she saw the complainant at the table as well. Her recollection of the complainant’s whereabouts at this time is obviously faulty and inconsistent with previous statements given by her. It is also inconsistent with the evidence of her 11-year old son. [9] She says that shortly after she returned to her bedroom, her son got up and went into the living room. He returned almost immediately and told her what he had observed there. She got up again and went into the living room where she observed the accused and the complainant lying on the floor by the sofa. The accused was doing up his pants. She noticed that the complainant’s pants were unbuttoned and that she was passed out. She was not able to arouse the complainant. She concluded that the accused had raped the complainant and she told him to leave the house. She was finally able to arouse the complainant couple of hours later. She went with her to the police and to the hospital where the vaginal swab was obtained. It was analyzed and was found to have the same DNA as that of the accused. [10] The evidence of her son was that he got up sometime between 10:00 a.m. and 11:00 a.m. and went into the living room. He saw the accused lying on the floor behind the complainant who was passed out. The accused’s pants were partially down and he was either awake or had just wakened up. [11] The complainant has no recollection of the sexual intercourse or of anything else that occurred that morning until her sister was able to arouse her. Nor did she have any recollection of the events of the previous evening prior to her passing out except for recollection of drinking at the house in the company of the accused and several others. She says that she never consented to having sexual intercourse with the accused and felt hurt that he took advantage of her. [12] The accused testified that he had been on binge all week. All the adults at the house also began drinking alcohol and smoking drugs the day before the alleged assault. The last thing he remembers is sitting around the dining room table drinking with his relatives. He has no recollection of what occurred thereafter until he was awakened by his sister-in-law and accused of raping the complainant. He has no recollection of how he or the complainant got on the floor or of the sexual intercourse that took place between them. [13] It is difficult to understand how person who was so grossly intoxicated could be capable of having sexual intercourse that involved penetrating the complainant and ejaculating semen into her vagina. It is also difficult to understand how such person could be capable of getting up and walking out of the house unattended. But no evidence was tendered at the trial that is inconsistent with the testimony of the accused. Nor was there anything in the evidence of the witnesses who were called by the Crown that was inconsistent with the accused’s evidence as to the state of his intoxication. As well, according to the expert evidence tendered by the defence, grossly intoxicated person is capable of engaging in sexual intercourse. [14] The expert witness called by the defence was qualified to give opinion evidence on how individuals behave while blacked out or passed out from the consumption of copious amounts of alcohol, and on the effect such states of intoxication have on consciousness and memory. The expert was not psychiatrist and was not qualified to give evidence on the physiological aspects of these states of intoxication. He testified that in his opinion it was possible for two people who had passed out after consuming large amounts of alcohol to engage in sexual intercourse while in that state and to awaken later without any recollection of the event. [15] He also testified that “blackout” is state of amnesia in which person can appear to function normally but have no recollection of events that occurred before, during or shortly after that time. “passout” is loss of consciousness. In such states person can carry on reasonably intelligent conversation and yet have no recollection of it. Each state can be experienced concurrently and person can pass in and out of these respective states. No rebuttal expert evidence was called by the Crown. [16] have reasonable doubt whether the accused was as intoxicated as he claims he was. But on the basis of all the evidence adduced and the peculiar circumstances of this case, am satisfied on balance of probabilities that his extreme level of self-induced intoxication rendered him incapable of making conscious decision to have sexual intercourse with the complainant with or without her consent. also find as fact that the complainant did nothing to suggest to the accused that she would consent to having sexual intercourse with him. On the basis of the accused’s own evidence, find that he was incapable of considering the issue of the complainant’s consent. He accordingly did not have mistaken belief, or any reasonable grounds for such belief, that the complainant had consented to having sexual intercourse with him. [17] It is within this factual context that the culpability of the accused must be considered. He raises three potential defences. The first is that the Crown has failed to prove beyond reasonable doubt that the complainant did not consent to have sexual intercourse with him. The accused maintains that the complainant cannot remember anything for considerable period of time before, during and after the sexual intercourse. How then can she know whether or not she consented? Can the court rely on her bare denial which, because she has no memory, is in effect an assumption by her? [18] previously addressed this issue in part during the trial when dismissed the nonsuit application brought by the defence at the close of the Crown’s case. denied the nonsuit application because there was evidence, independent of the complainant’s testimony, from which the only reasonable inference to be drawn was that she did not consent. It is clear from the testimony of the 11-year old son, that the sexual intercourse took place long after the complainant passed out. After that time she was incapable of giving consent. Nor was there any evidence that before she passed out she did anything whatsoever that might suggest to the accused that she would consent to have sexual intercourse with him. Her assertion, although inherently unreliable due to her lack of any memory or recall of events that occurred before, during and after the alleged assault, was consistent with all the other evidence that accepted. [19] My decision on this issue would likely have been different if the only “evidence” of lack of consent was the unsupported and inherently unreliable assertion of the complainant. Such an assertion is more of the nature of an assumption than fact. This is so because the complainant has no direct knowledge or recollection of what she actually did before, during or after the alleged assault. Without such knowledge, she can do no more than speculate or assume what she likely did on that previous occasion. As well, her assumption of what she likely did was made after the fact and at time when her state of mind was less influenced by alcohol than when the conduct complained of took place. The expert called by the defence testified that the consumption of significant quantities of alcohol diminishes inhibitions. The issue of whether or not she in fact consented must be determined by considering her state of mind at the time of the alleged assault, not at the time of the morning after the night before so to speak. [20] But the threshold for successful nonsuit application is significantly lower than the threshold for proof of guilt beyond reasonable doubt and must reconsider this issue taking into account the evidence subsequently adduced by the defence. This additional evidence changes nothing respecting this issue. If anything it strengthens the Crown’s case. The accused testified in effect that he didn’t even think about having sexual intercourse with the complainant nor did he know why he had done so. He never considered the issue of her consent or lack of it. [21] Sections 273.1(1) and (2)(b) of the Criminal Code are relevant to this issue but are not determinative of it. They read as follows: 273.1(1) —Subject to subsection (2) and subsection 265(3), “consent” means, for the purposes of sections 271, 272 and 273, the voluntary agreement of the complainant to engage in the sexual activity in question. (2) —No consent is obtained, for the purposes of sections 271, 272, and 273, where (b) the complainant is incapable of consenting to the activity. [22] These provisions simply legislate well-established principle of law that “consent” by person who is incapable of giving it, is of no effect. They obviously do not create new principle of law to the effect that consent by complainant who is capable of giving it, is retroactively revoked if the complainant subsequently becomes incapable of giving it. The presence or lack of consent, although determined at trial, is considered from the perspective of the period of time during which the conduct complained of took place. For this reason it is not relevant that the complainant may have subsequently “withdrawn” any consent given prior to or during that period of time. [23] The second defence raised by the accused as an alternate position, is that the accused honestly believed he had the consent of the complainant to have sexual intercourse with him. reject this submission on the basis that there is no evidence in this case to give this aspect of the defence an air of reality. Sections 265(4) and 273.2 of the Criminal Code provide as follows: 265.(4) —Where an accused alleges that he believed that the complainant consented to the conduct that is the subject-matter of the charge, judge, if satisfied that there is sufficient evidence and that, if believed by the jury, the evidence would constitute defence, shall instruct the jury, when reviewing all the evidence relating to the determination of the honesty of the accused’s belief, to consider the presence or absence of reasonable grounds for that belief. 273.2 —It is not defence to charge under section 271, 272, or 273 that the accused believed that the complainant consented to the activity that forms the subject-matter of the charge, where (a) the accused’s belief arose from the accused’s (i) self-induced intoxication, or (ii) recklessness or wilful blindness; or (b) the accused did not take reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting. [24] Counsel submitted two cases to me in connection with this issue in which both the complainant and the accused were intoxicated. In the first, R. v. Esau, 1997 CanLII 312 (SCC), [1997] S.C.R. 777, the Supreme Court of Canada upheld the N.W.T.C.A. in ordering new trial on the basis that the trial judge failed to charge the jury to consider the issue of honest but mistaken belief in consent. The court held that the fact the complainant was intoxicated does not preclude this particular defence from being raised. But the facts in that case are very different from those in the case before me. There the accused testified that the complainant had voluntarily engaged in sexual conduct with him. Here there is no evidence that the complainant did anything to suggest to the accused that she would consent to engaging in any form of sexual conduct with him. Nor did the accused allege that he honestly but mistakenly believed she was consenting. His evidence is simply that he has no recollection of the sexual intercourse nor explanation of how it could have taken place. [25] The second case is R. v. Osvath (1996), 1996 CanLII 10220 (ON CA), 46 C.R. (4th) 124 (Ont. C.A.) in which the court allowed an appeal from conviction and ordered new trial. It did so on the basis that the trial judge did not adequately consider the defence of honest but mistaken belief in consent by concluding that the accused acted with wilful blindness. Again the facts of that case are quite different than those in the case before me as again, the accused testified that the complainant had voluntarily engaged in sexual conduct with him. am satisfied beyond reasonable doubt that the accused had no honest but mistaken belief that the complainant consented to having sexual intercourse with him. All he can allege is that the complainant must have consented or he would not have engaged in sexual intercourse with her. What was said previously about the complainant’s assertion can be said of the accused’s assertion. It is not evidence but merely speculative assumption. [26] The third defence raised by the accused is “extreme drunkenness”. He contends that at the time the sexual intercourse took place, he was so intoxicated that he was not in conscious state and was incapable of forming any intent to have sexual intercourse with the complainant without her consent. This defence arises from the Daviault case, supra. The defence of “extreme drunkenness” is distinguished from the defence of automatism in that it applies even though the automatic state arises from self- induced intoxication. This defence triggered the legislative response found in s. 33.1 of the Criminal Code. It reads as follows: 33.1(1) —It is not defence to an offence referred to in subsection (3) that the accused, by reason of self-induced intoxication, lacked the general intent or the voluntariness required to commit the offence, where the accused departed markedly from the standard of care as described in subsection (2). (2) —For the purposes of this section, person departs markedly from the standard of reasonable care generally recognized in Canadian society and is thereby criminally at fault where the person, while in state of self-induced intoxication that renders the person unaware of, or incapable of consciously controlling, their behaviour, voluntarily or involuntarily interferes or threatens to interfere with the bodily integrity of another person. (3) —This section applies in respect of an offence under this Act or any other Act of Parliament that includes as an element an assault or any other interference or threat of interference by person with the bodily integrity of another person. [27] As yet, there is not much jurisprudence that interprets this legislative provision. Although the constitutionality of the provision was not raised in the case before me, it has been held in at least two recent cases that it violates the Charter and is not saved by s. 1. R. v. Brenton, 1999 CanLII 13930 (NWT SC), [2000] W.W.R. 269 (N.W.T.S.C.) and R. v. Dunn, [1999] O.J. No. 5452 (Q.L.) (Ontario Superior Court of Justice). [28] On the other hand, two cases have held that even though it violates the Charter it is saved by s. 1. R. v. Vickberg (1998), 1998 CanLII 15068 (BC SC), 16 C.R. (5th) 164 (B.C.S.C.) and R. v. Decaire (September 11, 1998 unreported) (Ont. Ct. of Justice Gen. Div.), upheld on appeal, [1999] O.J. No. 4794 (Q.L.) (Ont. C.A.). [29] Two decisions of the Court of Appeal in Ontario and British Columbia relied on the constitutional validity of s. 33.1. In R. v. Martin, [1999] O.J. No. 5066, the Ontario Court of Appeal held that the trial judge erred in law in failing to charge the jury in accordance with s. 33.1 of the Criminal Code. The court stated that this section would have made it clear to the jury that self‑induced intoxication was not available as defence to the respondent accused. The British Columbia Court of Appeal in R. v. Frechette (1999), 1999 BCCA 46 (CanLII), 132 C.C.C. (3d) 1, noted that s. 33.1 now limits the availability of the “extreme drunkenness” defence. [30] It should also be borne in mind that there was strong dissent in Daviault, supra, to the effect that those who render themselves incapable of knowing what they are doing through the voluntary consumption of alcohol or drugs possess sufficiently blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits the imprisonment of the innocent. While as general rule an act must be the voluntary act of an accused in order for the actus reus to exist, the rules of fundamental justice are satisfied by showing that the drunken state was attained through the accused’s own blameworthy conduct. [31] Subsection (1) of s. 33.1 in effect provides that the lack of general intent or voluntariness (which is usually an integral element of any criminal offence) is not defence to an assault type of charge described in ss. (3) if two conditions are established. The first is that the lack of general intent or voluntariness resulted from self-induced intoxication. The second is that the accused departed markedly from the standard of reasonable care generally recognized in Canadian society as described in ss. (2). [32] The first condition is self-explanatory and would be satisfied in almost every conceivable case of intoxication that arose from drinking alcohol as beverage or abusing drugs. It would not be satisfied in the rare case in which the ingestion of alcohol or drugs was involuntary, such as by means of spiked drink or forced injection. [33] could find no case that analyses the second condition that I’ll refer to as the “marked departure” condition described in ss. (2). This condition is satisfied if three sub-conditions are met: i. the accused interferes or threatens to interfere with the bodily integrity of another person, (whether voluntarily or not) ii. while being in state of self-induced intoxication iii. that renders him or her unaware of or incapable of consciously controlling his or her behaviour. [34] Conduct that satisfies these conditions is deemed to constitute marked departure from the standard of care generally recognized in Canadian society. Such conduct itself constitutes criminal culpability. It is similar to recklessness, well-established principle of criminal law which also constitutes criminal culpability. It is not defence to crime that the accused had no intention to actually harm another if the accused does something that he or she knows or should know will likely harm the other and yet goes ahead and does it anyway. Criminal culpability in such cases is not dependent on the wilful intention to cause the harm, but on the wilful intention to engage in conduct that incurs the risk of harm without caring whether or not the harm ensues. [35] In summary, s. 33.1 in effect provides that the act of becoming voluntarily intoxicated to the extent of being incapable of controlling one’s behaviour, constitutes criminal culpability sufficient to found criminal liability for offences committed against the bodily integrity of others. Whether the accused had lost consciousness by the time he assaulted the other, or whether his acts in assaulting the other were involuntary acts, are of no consequence insofar as the issue of criminal liability is concerned. The public outcry and the Parliamentary response to the Daviault case (as termed by Romilly J. in R. v. Poslowsky, [1997] B.C.J. No. 2585 (Q.L.)) strongly indicate that such provision is not only consistent with the objectives of the Charter but is justifiable and essential in free and democratic society. [36] Some of the cases have cited contain detailed analysis of the constitutional issues raised by s. 33.1. These issues are also reviewed and discussed by Kent Roach in Criminal Law, 2d ed. (Toronto: Irwin Law, 2000), c. “Intoxication”. With respect am of the view that the article and some of the cases confuse the issue of criminal culpability with the issue of punishment in suggesting that s. 33.1 may not survive the proportionality test in s. justification analysis. In my view, the court has broad discretion to differentiate in sentences imposed for offences that were deliberately committed and those that were committed involuntarily because of self-induced intoxication. [37] In similar vein, the court also has discretion to differentiate in sentences imposed for offences committed against sober victims who have acted responsibly and those committed against intoxicated victims who have acted irresponsibly. In case like the one before me, it is obvious that no sexual assault would have taken place if the complainant had taken some responsibility for maintaining her own bodily integrity by refraining from becoming so grossly intoxicated by alcohol and drugs that, in the words of s. 33.1, rendered her unaware of or incapable of consciously controlling her behaviour. Although she had the right to get drunk and pass out, her conduct is no more responsible than that of person who exercises his right to walk along highway at night in dark clothing. [38] As indicated in Daviault, supra, and in R. v. Tom (1998), 1998 CanLII 5340 (BC CA), 129 C.C.C. (3d) 540 (B.C.C.A.), the defence of “extreme intoxication” is successful in the rarest of cases. The accused must adduce quantitative evidence of alcohol consumption and expert evidence (usually from psychiatrist or psychologist) to establish on balance of probabilities that at the time of the commission of the offence he or she was in state akin to automatism such as that discussed in R. v. Parks (1992), 1992 CanLII 78 (SCC), 75 C.C.C. (3d) 287 (S.C.C.) and R. v. Stone, 1999 CanLII 688 (SCC), [1999] S.C.R. 290. These last two cases dealt only with automatism that did not arise from self-induced intoxication but they define the states and different kinds of automatism. [39] In my view, the case before me is one of those rare cases in which the accused has established the Daviault “extreme intoxication” defence on balance of probabilities. Were it not for s. 33.1 that does away with this defence in sexual assault cases, I would have acquitted him. Conclusion [40] The accused is guilty as charged. invite sentencing submissions from counsel.

The accused was charged with sexual assault under s.271 of the Criminal Code. Although the DNA evidence established he had sexual intercourse with the complainant, neither had any memory of it due to their self-induced states of intoxication. Defences raised were consent, an honest but mistaken belief that she gave her consent, and extreme drunkenness such that he was so intoxicated that he was not in a conscious state and was incapable of forming any intent to have sexual intercourse without consent. HELD: The accused was found guilty. 1)Although the defence of 'extreme intoxication' is successful in the rarest of cases, the accused established the Daviault 'extreme intoxication' on a balance of probabilities. He would have been acquitted had it not been for s.33.1 which does away with this defence in sexual assault cases. 2)The court was satisfied on a balance of probabilities that his extreme level of self-induced intoxication rendered him incapable of making a conscious decision to have sexual intercourse with the complainant with or without her consent. The court was satisfied that the complainant had not done anything to suggest that she would consent. The accused was incapable of considering the issue of consent and accordingly did not have a mistaken belief or reasonable grounds for such a belief. It was clear from the testimony of an 11 year old that the intercourse took place long after the complainant passed out. She was incapable of giving consent after that time. Her assertion of lack of consent was inherently unreliable due to her lack of any memory of events that occurred before, during and after the alleged assault and would have been more in the nature of an assumption than a fact, but was found to be consistent with all the other evidence. It was not relevant that she may have withdrawn consent. 3)There was no evidence to give his second defence (that he honestly believed he had her consent) an air of reality. His assertion that she must have consented or he would not have done it was speculative assumption, not evidence. 4)Section 33.1 provides that the act of becoming voluntarily intoxicated to the extent of being incapable of controlling one's behaviour constitutes criminal culpability sufficient to found criminal liability for offences committed against the bodily integrity of others. The public outcry and Parliamentary response to Daviault strongly indicate that s.33.1 is not only consistent with the objectives of the Charter but is justifiable and essential in a free and democratic society. Of four recent cases that held Criminal Code s.33.1 violates the Charter, two held it was saved by s.1 while two held it was not saved by s.1 of the Charter. 5)Section 33.1(1) provides the lack of general intent or voluntariness is not a defence to an assault charge described in ss.(3)if it resulted from self-induced intoxication or the accused departed markedly from the standard of reasonable care generally recognized in Canadian society. The three sub-conditions described in ss.(2) concerning marked departure constitute criminal culpability similar to recklessness. Criminal culpability is not dependent on wilful intention to cause harm but on the wilful intention to engage in conduct that incurs the risk of harm without caring whether or not harm ensues. 6)The strong dissent in Daviault indicated those who render themselves incapable of knowing what they are doing through voluntary consumption of alcohol or drugs possess a sufficiently blameworthy state of mind that their imprisonment does not offend the principle of fundamental justice which prohibits the imprisonment of the innocent. The court has broad discretion to differentiate in sentences imposed for offences that were deliberately committed and those that were committed involuntarily because of self-induced intoxication.

b_2000skqb572.txt

J. Dated: 20000622 2000 SKCA 76 Docket: 95 THE COURT OF APPEAL FOR SASKATCHEWAN Before: Lane J.A. in Chambers GARY DALE SIDLOSKI PROSPECTIVE APPELLANT (Defendant) and FARM CREDIT CORPORATION PROSPECTIVE RESPONDENT (Plaintiff) COUNSEL: Mr. M. Ignatiuk for the Applicant Mr. M. Crosbie for the Respondent DISPOSITION: On Appeal From: Q.B. No. 127/99, J.C. of Weyburn Application Heard: June 14, 2000 Application Dismissed: June 22, 2000 Written Reasons: June 22, 2000 Reasons By: The Honourable Mr. Justice Lane Lane J.A. [1] The Applicant applies for leave to appeal a decision out of Queen’s Bench chambers dismissing his application for relief under s. 61 of The Queen’s Bench Act R.S.S. 1978, c. Q-1. [2] The considerations to be applied in leave application are as follows: (1) whether the issue raised by the proposed appeal is of sufficient importance either to the litigation before the Court or to the practice in general to warrant consideration by the Court of Appeal; (2) whether the applicant’s proposed submission to the Court of Appeal has sufficient merit to warrant the granting of leave; (3) whether there is any delay in the proceedings which would be caused by the interjection of an appeal. [3] The facts have been completely set out in the decision of Kovach J. dated April 26, 2000, Q.B. 127/98. In my view the applicant misconstrues the mortgage agreement. The monies paid by the applicant’s father as result of separate transaction were applied by Farm Credit Corporation to release the father’s land which had been provided to Farm Credit Corporation as accommodating security only. These facts were so found by the chambers judge. The applicant still has a right to redeem upon payment. [4] No issue of importance has been raised nor do I see any merit to the applicant’s appeal. Leave to appeal is therefore denied. The respondent herein shall have its costs on double Column V. DATED at the City of Regina, in the Province of Saskatchewan, this 22nd day of June, A.D. 2000.

Applicant applies for leave to appeal a Queen's Bench Chambers decision dismissing his application for relief under s.61 of the Queen's Bench Act. HELD: Leave to appeal denied. The respondent has costs at double Column V. The considerations to be applied in a leave to appeal application is 1)whether the issue raised by the proposed appeal is sufficiently important to the litigation before the Court or to the practice in general to warrant consideration by the Court of Appeal. 2)Whether the applicant's proposed submission to the Court of Appeal has sufficient merit to warrant the granting of leave. 3)Whether there is any delay in the proceedings which would be caused by the interjection of an appeal. Here the applicant has misconstrued the mortgage agreement. The applicant still has a right to redeem upon payment. No issue of importance was raised nor did the Court see any merit to the applicant's appeal

2000skca76.txt

PROVINCIAL COURT OF SASKATCHEWAN PRINCE ALBERT IN THE MATTER OF INFORMATION #24039465 HER MAJESTY THE QUEEN and JONATHON STEPHEN ABRAMETZ T.B. Bekolay, P.C.J. John Field, CROWN PROSECUTOR, Prince Albert, Sask. FOR THE CROWN. 1. Jonathon Stephen Abrametz stands charged that on or about the 16th day of December, 1998 at Prince Albert, in the Province of Saskatchewan, he:(1) - did while his ability to operate a motor vehicle was impaired by alcohol or a drug have the care or control of a motor vehicle contrary to Section 255(1) and Section 253(a) of the Criminal Code;(2) - did having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood have the care or control of a motor vehicle contrary to Section 253(b) and Section 255(1) of the Criminal Code. 2. At trial, there was only one witness, Cst. Roland Schmidt, an 18 year member of the Royal Canadian Mounted Police currently stationed with the North District Highway Patrol working out of Prince Albert. He testified that on the night in question he was on duty, in uniform, and driving marked police vehicle. He had stopped at the Bank of Montreal at the corner of 2nd Ave. West and 28th St. West, in the City of Prince Albert to conduct some personal banking. At about 11:40 p.m., as he was leaving the bank’s parking lot he observed Ford Bronco, with driver, passenger in the front seat and passenger in the mid rear seat proceeding west on 28th Street. He was suspicious they may have been consuming alcohol and therefore followed the vehicle. The vehicle signaled right turn. The officer observed that the vehicle displayed an out of date sticker on it’s license plate in violation of S. 27(5) of the Highway Traffic Act. Deciding to investigate this infraction of the said Highway Traffic Act, he engaged the police lights, followed the vehicle north on 4th Ave. West, then right on to 27th Street where the vehicle hit the curb, bounced off the curb, then proceeded to stop within 30 feet. The officer approached the driver, who produced photo driver identification in the name of the accused. He asked the driver why he had not stopped. He could not understand the reply. His speech was extremely slurred. There was an overpowering (strong) odour of fresh beer emanating from the vehicle. The accused nearly fell over when he exited the vehicle. The officer concluded, quite reasonably in the circumstances, that the accused’s ability to operate motor vehicle was impaired and arrested him at 11:50 p.m. The officer made the demand for samples of the accused breath, read him his charter rights, asked him if he wished to call lawyer. The accused replied “Yes” and once he was placed in the police vehicle was immediately allowed call. The officer searched the vehicle for open liquor. At 11:58 p.m. he left the scene taking the accused to the Royal Canadian Mounted Police Detachment in the City of Prince Albert, trip of about two minutes. The accused was placed in the phone room at the police station where he remained for some twelve minutes. When the officer could hear the beeping sound made by phone off the hook he pounded on the door, the accused advised him he had talked to counsel and received advice. The officer then turned the accused over to the breathalyser technician. The accused blew 170 and 160 respectively on the two tests. 3. If all of the evidence heard at trial can be admitted, the case is straight forward and the Crown has established beyond any reasonable doubt both offences charged. 4. The accused contends that his right to be secure against unreasonable search and seizure guaranteed by Section of the charter and his right not to be arbitrarily detained or imprisoned as guaranteed by Section of the charter were breached. Both submissions depend on the answer to the question of whether Cst. Schmidt was in the lawful execution of his duty in stopping the accused within the urban municipality of Prince Albert for an obvious violation of the Highway Traffic Act. If he was then there were no breaches of the accused’s charter rights; if he was not, there were and the court must then address the issue of what the appropriate remedy for the breaches should be under Section 24 of the charter. 5. It is to be noted that have framed the issue as have because am satisfied that the officer had only suspicion of possible alcohol consumption based on young males in vehicle at 11:40 at night prior to engaging his police lights to stop the accused’s vehicle. After the police lights were engaged to stop the accused, the accused drove his vehicle into the curb. Before that, his driving did not provide the officer with any other basis for his suspicion. 6. In determining whether Cst. Schmidt was acting within his jurisdiction and was in the lawful execution of his duty reference must be had to the relevant provisions of the Highway Traffic Act, the Police Act, 1990 and the R.C.M.P. Act. 7. The relevant sections of the Highway Traffic Act read: S. 2(s) “peace officer” means: (i) member of police force in Saskatchewan; (ii) person or class of persons designated by the Lieutenant Governor in Council as traffic officers; or (iii) any person appointed under The Police Act, 1990 as special constable or peace officer for the enforcement of this Act; S. 27(5) No person shall fail to display or exhibit on licence plates current and valid validation stickers issued to that person pursuant to The Vehicle Administration Act with respect to those licence plates. S. 40(8) peace officer who: (a) is readily identifiable as peace officer; and (b) is in the lawful execution of his or duties and responsibilities; may require the person in charge of or operating motor vehicle to stop that vehicle. The relevant provisions of The Police Act, 1990 read as follows: S. 21(1) Subject to the approval of the Lieutenant Governor in Council, the minister, on behalf of the Government of Saskatchewan, may enter into an agreement with the Government of Canada to employ the Royal Canadian Mounted Police to aid in the administration of justice and the enforcement of the laws in force in Saskatchewan.[emphasis added] (2) Where an agreement has been entered into pursuant to subsection (1), the Royal Canadian Mounted Police are responsible for policing all or any portion of Saskatchewan that may be directed by the minister. (3) Notwithstanding subsection (2), the Royal Canadian Mounted Police are not responsible for policing municipality unless there is an agreement made pursuant to Section 22, 22.1 or 23 respecting that municipality. (4) During the period of an agreement entered into pursuant to subsection (1), members of the Royal Canadian Mounted Police: (a) are peace officers; and (b) shall fulfil the duties and may exercise the powers conferred to any Act or law on peace officers or constables with respect to the preservation of peace, the prevention of crime and the enforcement of laws in force in Saskatchewan. 1990-91, c.P-15.01.s.21; 1997, c.45,s.3. Emergency policing by Royal Canadian Mounted Police S. 24(1) Not withstanding any other provision of this Act or any other Act, where, in the opinion of the minister: (a) an emergency exists: and (b) it is in the best interests of the administration of justice in Saskatchewan that the services of the Royal Canadian Mounted Police be used in any municipality to provide adequate policing services; the Lieutenant Governor in Council, by order, may make provision for the employment of the Royal Canadian Mounted Police to provide policing services to the municipality for any time that the Lieutenant Governor in Council considers advisable. (2) Where an order is made pursuant to subsection (1), the Lieutenant Governor in Council, by order may direct the municipality to pay the Government of Saskatchewan any amount that the Lieutenant Governor in Council considers necessary for the policing services. (3) Where municipality refuses or neglects to pay the amount required pursuant to subsection (2), that amount: (a) may be deducted from any grant payable by the Government of Saskatchewan to the municipality; or (b) may be recovered by an action in any court of competent jurisdiction as debt due to Her Majesty in right of Saskatchewan. 1990-91, c.P-15.01,s.24. MUNICIPAL POLICE Municipality responsible for policing S. 25 municipality: (a) is responsible for the maintenance of law and order within its boundaries; (b) shall provide policing services to maintain reasonable standard of law enforcement; and (c) shall provide adequate and reasonable facilities required for the policing services mentioned in clause (b). 1990-91, c.P-15.01, s.25. S. 26(1) municipality shall: (a) establish its own police service; or (b) enter into an agreement with the Government of Saskatchewan pursuant to Section 22, or the Government of Canada, pursuant to Section 23, to have policing services provided by the Royal Canadian Mounted Police. S. 36(1) Before entering on the duties of member, member of police service shall take and subscribe to an oath or affirmation in the form prescribed in the regulations before person authorized to administer an oath or affirmation. (2) Unless other wise indicated in his or her appointment, member has the power and the responsibility to: (a) perform all duties that are assigned to constables or peace officers in relation to: (i) the preservation of peace; (ii) the prevention of crime and offences against the laws in force in the municipality; and (iii) the apprehension of criminals, offenders and others who may lawfully be taken into custody; (b) execute all warrants and perform all duties and services under or in relation to them that, pursuant to the laws in force in the municipality, may lawfully be executed and performed by constables or peace officers; and (c) perform all duties that may lawfully be performed by constables or peace officers in relation to the escorting and conveyance of persons in lawful custody to and from courts, places of confinement, correctional facilities or camps, hospitals or other places. (3) Unless otherwise indicated in the member’s appointment, member has authority to exercise the powers and perform the duties mentioned in subsection (2) throughout Saskatchewan. 1990-91, c.P-1501, s.36. 8. The relevant portions of The Royal Canadian Mounted Police Act read as follows: Police Force for Canada 3. There shall continue to be police force for Canada, which shall consist of officers and other members and be known as the Royal Canadian Mounted Police. R.S., 1985, c.R-10, s.2; R.S., 1985, c.8(2nd Supp.), s.1. Peace Officer 9. Every officer and every person designated as peace officer under subsection 7(1) is peace officer in every part of Canada and has all the powers, authority, protection and privileges that peace officer has by law until the officer or person is dismissed or discharged from the Force as provided in this Act, the regulations or the Commissioner’s standing orders or until the appointment of the officer or person expires or is revoked.[emphasis added] R.S., 1985, c. R-10, s.9; R.S., 1985, c.8(2nd Supp.), s. 4. 18. It is the duty of the members who are peace officers, subject to the orders of the Commissioner, (a) to perform all duties that are assigned to peace officers in relation to the preservation of the peace, the prevention of crime and of offences against the laws of Canada and the laws in force in any province in which they may be employed and the apprehension of criminals and offenders and others who may be lawfully taken into custody; (b) to execute all warrants, and perform all duties and services in relation thereto, that may, under this Act or the laws of Canada or the laws in force in any province, be lawfully executed and performed by peace officers; (c) to perform all duties that may be lawfully performed by peace officers in relation to the escort and conveyance of convicts and other persons in custody to or from any courts, places of punishment or confinement, asylums or other places; and (d) to perform such other duties and functions as are prescribed by the Governor in Council or the commissioner Arrangements with provinces (1) The Minister may, with the approval of the Governor in council, enter into an arrangement with the government of any province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the province and in carrying into effect the laws in force therein. [emphasis added] Arrangements with municipalities (2) The Minister may, with the approval of the Governor in Council and the lieutenant governor in council of any province, enter into an arrangement with any municipality in the province for the use or employment of the Force, or any portion thereof, in aiding the administration of justice in the municipality and in carrying into effect the laws in force therein.[emphasis added] Payment for services (3) The Minister may, with the approval of the Treasure Board, in any arrangement made under subsection (1) or (2), agree on and determine the amount of money to be paid by the province or municipality for the services of the Force. Taking over other police forces (4) There may be included in any arrangement made under subsection (1) or (2) provision for the taking over by the Force of officers and other members of any provincial or municipal police force. Report to Parliament (5) The Minister shall cause to be laid before Parliament copy of every arrangement made under subsection (1) or (2) within fifteen days after it is made or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that either House of Parliament in sitting. R.S., c.R-9, s.20. 9. In determining the issues of: (1) whether Constable Schmidt, as an R.C.M.P. officer, had the jurisdiction to carry out his duties as a peace officer appointed pursuant to The Royal Canadian Mounted Police Act in the City of Prince Albert? (2) in the circumstances, if he did have the jurisdiction, was Constable Schmidt acting in the lawful execution of his duties in conducting a “random stop” of the accused? This court must examine the foregoing statutes. In doing so the Crown submitted and concur that the following rules of construction as stated in the text, The Construction of Statues, E.A. Driedger, at pages 81 and 82 are relevant: “1. The Act as whole is to be read in its entire context so as to ascertain the intention of Parliament (the law as expressly or impliedly enacted by the words), the object of the Act (the ends sought to be achieved), and the scheme of the Act (the relation between the individual provisions of the Act). 2. The words of the individual provisions to be applied to the particular case under consideration are then to be read in their grammatical and ordinary sense in the light of the intention of Parliament embodied in the Act as whole, the object of the Act and the scheme of the Act, and if they are clear and unambiguous and in harmony with that intention, object and scheme and with the general body of the law, that is the end. 3. If the words are apparently obscure or ambiguous, then meaning that best accords with the intention of Parliament, the object of the Act and the scheme of the Act, but one that the words are reasonably capable of bearing, is to be given them. 4. If, notwithstanding that the words are clear and unambiguous when read in their grammatical and ordinary sense, there is disharmony within the statute or statutes in pari materia, then less grammatical or less ordinary meaning that will produce harmony is to be given the words, if they are reasonably capable of bearing that meaning. 5. If obscurity, ambiguity or disharmony cannot be resolved objectively reference to the intention of Parliament, the object of the Act or the scheme of the Act, then meaning that appears to be the most reasonable may be selected.” and the author goes on to say at page 167: “In Canada there is presumption that legislative body does not exceed its powers under the constitution. Hence, if statute is open to two constructions, one of which would render the statute ultra vires and the other of which would not, the courts will adopt the latter construction, for the obvious reason that an intention to exceed its powers is not to be attributed to legislative body, or, as it was put by Cartwright J. in McKay v. The Queen “if an enactment is capable of receiving meaning according to which its operation is restricted to matters within the power of the enacting body it shall be interpreted accordingly”.[emphasis added] 10. In reviewing the scheme and object of The Royal Canadian Mounted Police Act it clear that section and section of that Act operate to render the Royal Canadian Mounted Police officers part of “police force for Canada” and peace officers “for every part of Canada” with “all the powers, authority, protection and privileges that peace officer has by law”. The language used by parliament is clear, broad and unambiguous as it was their obvious intention to create a police force that operates without jurisdictional barriers throughout the entire country of Canada. There is nothing in the scheme or object of The Royal Canadian Mounted Police Act that derogates from that basic presumption. This court notes that when there is limitation on their duties it is clearly stated. For example, section 18 of The Royal Canadian Mounted Police Act limits the Royal Canadian Mounted Police to enforcing only the provincial laws of the province in which they are employed. 11. Further, section 18 of The Royal Canadian Mounted Police Act clearly outlines the duties of members who are peace officers. That section states that members of the Royal Canadian Mounted Police who happen to be peace officers must perform all duties that are assigned to peace officers in relation to three distinct objects. It is clear that in their grammatical and ordinary meaning of the words “are assigned” refer to the three distinct objects and not to specific areas of jurisdiction where Royal Canadian Mounted Police officers are employed within the province, as council for the defence would suggest. For the words “are assigned” to refer to something specific, rather than the three objects, that specific thing would have to be stated in the space right after the words “are assigned”. This interpretation is also born out when one reviews section 36 of The Royal Canadian Mounted Police Act, which is framed with colon and the subheadings. As well, one notes that in that section jurisdiction is specifically relegated to separate paragraph. 12. There are very few reported decisions which have examined the issue of the jurisdiction of the Royal Canadian Mounted Police to police throughout Canada. In the decision of R. v. Soucy, (1975) 1975 CanLII 1238 (NB CA), 23 C.C.C. (2d) 561, the appeal division of the New Brunswick Supreme Court stated as follows in the context of examining whether peace officer appointed in the Town of Rothesay, while on holidays in Montreal or Vancouver, could make demand on person in either of those cities: “A member of the R.C.M.P. could make such demand anywhere in Canada as his territorial jurisdiction extends throughout Canada underthe Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9. It is of interest to note that by s. 18 of the said Act, R.C.M.P. constables are restricted in enforcing the laws in force in any Province in that they are given jurisdiction only in relation to provincial laws of the Province in which they are employed.” 13. In the Soucy decision the court found that demand made by town constable outside town limits would be demand made without jurisdiction and the demand would therefore be invalid. The decision in R. v. Young (1981), 34 A.R. 214 (Albert Court of Queen’s Bench) also touches on the issue. In that decision, member of the R.C.M.P. followed the accused into service station at 8:20 p.m. in Edmonton. The officer was on his way out of town. The officer called an R.C.M.P. detachment and asked that the city police be called and therefore no demand was immediately made. In fact the officer thought he could not act because he was within the jurisdiction of the city police. The court then went on to find the R.C.M.P. officer was mistaken and had the jurisdiction to make the demand and quoted the above noted quotation from the Soucy decision with approval. 14. This case is also of note as it illustrates the principle that it is up to the courts to determine whether or not the R.C.M.P. officer is in the lawful execution of his duty, and what the officer believes is not entirely relevant at this stage. While the good faith of the officer would be an important consideration in the Section 24(2) charter argument, it is not helpful in determining what the law is. Therefore, even if Cst. Schmidt admitted that he wasn’t acting in the lawful scope of his duties and responsibilities when he pulled over the accused, this does not determine the matter of what the law actually is and what the scope of his duties and responsibilities are. 15. The decision in Soucy also examined the problems dealing with municipal police and the limits of their territorial jurisdiction in their appointment. The Crown referred the court to several cases dealing with the jurisdiction involving provincial and municipal jurisdiction as examples of the different issues and problems that arise in the cases of municipal and provincial police forces from case involving an R.C.M.P. officer. The court reviewed in this regard Harvey v. R. 20 A.R. 266 (Alberta Court of Appeal), R. v. Rutherford (1994 CarswellB.C. 1274), R. v. Giancarlo (1992), 55 O.A.C. 226, R. v. Schroeder 22 M.V.R. (2d) 307, R. v. Stephens 1995 CanLII 626 (ON CA), [1996] C.N.L.R. 200, R. v. Polchies (1981) 35 N.B.R. (2d) 185, R. v. White B.C.L.R. 179, R. v. Burke (1992) 39 M.V.R. (2d) 121, Anderson v. R. (1986) 40 M.V.R. 164. 16. Defence counsel referred the court to the recent decision of our brother Judge Kolenick in R. v. Weber. This case involved municipally appointed police officer and in the view of the court is not of much assistance in respect to analyzing the jurisdictional issues in relation to the R.C.M.P. 17. Defence counsel argued strenuously that The Police Act provides that in Section 21 that Saskatchewan must enter into an agreement with Canada to employ the R.C.M.P. and that the R.C.M.P. are only responsible for policing those portions of the province covered by that agreement. Defence strenuously submits that Section 21(3) makes it clear that the R.C.M.P. is not responsible for policing municipality unless there is an agreement made pursuant to Sections 22 or 23 respecting that particular municipality and that in that situation the R.C.M.P. is not responsible for policing in an urban municipality such as the City of Prince Albert. 18. It is the view of this court that when one examines the context of The Police Act 1990, it is clear that the Act deals with how police services are to be provided and who pays for them. The Act recognizes that municipality in Saskatchewan must have police services that provides them with the ability to use the R.C.M.P. provided there is an agreement for payment of services. However, there is no exclusivity mentioned between one force or another. It is important to note that the word “aid” is used in Section 21 of The Police Act 1990 as in Section 20 of The Royal Canadian Mounted Police Act when dealing with the provision of police services. The dictionary definition of “aid” is “help”. There is no exclusivity in assistance. 19. When examing Section 21 of The Police Act 1990 one notes there is no clear language to imply derogation from the rights of an R.C.M.P. peace officer. The Act simply states that the R.C.M.P. are responsible for policing when there is an agreement between the province and the federal government. It further states that they are not responsible for policing municipality unless there is an agreement. They certainly do not use words that the R.C.M.P. officer cannot or shall not provide police services in the municipality. As well, given the ultra vires statute construction doctrine, it would not be appropriate for provincial legislation to take away powers given by Federal legislation. This court therefore reads the provincial legislation in manner in which the legislature is not taken to have exceeded it’s jurisdiction. Therefore clearly The Police Act must be read in context as providing a manner of funding policing not a manner of taking away jurisdiction granted to R.C.M.P. officers by The Royal Canadian Mounted Police Act. 20. In coming to this conclusion the court is of view that there is no good public policy reason for the R.C.M.P. to be excluded from operating in any specific geographic area. It would not make sense for the legislature to limit the opportunity for policing of community by making sure that fewer police officers are able to act in any particular setting within the province. 21. Counsel for the accused also referred the court to number of decisions dealing with municipal police forces and with wildlife officers. This court reviewed those cases with some care but is of the view that they involve different issues than when one is dealing with the jurisdiction of the R.C.M.P. 22. This court concludes that on these facts the stopping of the Abrametz vehicle was stop in respect to enforcement of an infraction of Highway Traffic Act. Both counsel for the accused and for the crown also referred to the stopping as “random stop”. therefore turn to address the issue of whether or not Cst. Schmidt was acting in the lawful execution of his duty if his stopping of the Abrametz vehicle should be regarded as “random stop”. 23. Of course the most relevant section of The Highway Traffic Act in this regard is Section 40(8) which we have quoted in full above. In regard to the constitutionality of random stops the crown referred the court to R. v. Ladouceur (1990) 56 C.C.C. (3d) page 11 and R. v. Duncanson (1992) 1992 CanLII 92 (SCC), S.C.R. 836. 24. In the R. v. Ladouceur, the accused had been stopped for routine check. The police officer acknowledged that there was no basis to suspect the accused had done anything wrong and that the soul purpose was to ensure that the accused’s papers were in order and he had valid driver’s licence. In 5/4 split, the majority of The Supreme Court concluded that this random check was justified. The Supreme Court rejected the argument that it created potential for abuse by police powers, holding that officers can only stop people for legal reasons and in that case reasons related to driving car such as licence, insurance, mechanical fitness and sobriety. 25. In the R. v. Duncanson decision of the Saskatchewan Court of Appeal Cameron J.A. stated at page 93 as follows: “Section 40(8) empowers police officer to stop vehicle “while in the lawful execution of his duties and responsibilities”. The only qualification apart from that, is that the police officer be readily identifiable as such. Obviously the duties and responsibilities of police offices far exceed the enforcement of The Highway Traffic Act, and so read in it’s ordinary sense, the section empowers the police officer to stop vehicle for any purpose connected with the lawful execution of his or her duties and responsibilities generally, however derived. To construe the provisions in issue in the limited way urged upon us would be inconsistent with their language and the intention, as we see it, of the legislature. It might be noted that s. 40(8) was enacted following, among others, the decision of the Supreme Court of Canada in R. v. Hufsky, [1998] S.C.R. 621, where statutory provisions of this nature (then in existence in Ontario) were thoroughly canvassed in the context of their use in the enforcement of the drinking and driving provisions of the Criminal Code. They were again considered in later decision of the Supreme Court in R. v. Ladouceur, 1990 CanLII 108 (SCC), [1990] S.C.R. 1257 they were taken to authorize the police, without the need even for suspicion of wrongdoing, to stop vehicle and thus detain its driver, and to do so for no purpose other than one connected generally to the lawful execution of the duties and responsibilities of the police. The facts. 40(8) was enacted following the decision in Hufsky is strongly indicative of an intention in the legislature to empower the police in this province (as empowered in Ontario) with the authority to stop vehicle for any purpose associated with lawful execution of their duties and responsibilities generally, and to do so without the need even for suspicion of wrongdoing of any kind by the driver.” 26. Various decisions of Saskatchewan have reviewed these decisions. The crown referred the court to number of them. The court from a review of the same has determined that the law in this area is now clear and the decisions reflect that the police can detain vehicles as long as they do so for the purposes of checking for sobriety, licences, ownership, insurance and mechanical fitness of motor vehicles. Counsel for the accused referred the court to R. v. Lott and R. v. Emke. In the Lott decision the trial judge disbelieved that the police were checking for any of the specified objects and therefore it is of little relevance in this case where the officer was clearly checking the licencing relevant to vehicle insurance. It is this court’s view that the R. v. Emke decision is outdated given more recent case law. 27. In conclusion, given that Cst. Schmidt was checking for vehicle licencing relevant to vehicle insurance and in respect to his suspicion in relation to the sobriety of the accused it is clear on the law as it currently stands that he was well within his duties and responsibilities under The Highway Traffic Act to make this random stop. 28. Having concluded that the officer was acting in the lawful execution of his duty, I find that there has been no breach of the accused’s rights under the Canadian Charter of Rights and Freedoms and I find him guilty of the charge of driving with a blood alcohol level of greater than eighty milligrams in one hundred millilitres of his blood. Having convicted him in relation to this count enter judicial stay in relation to the impaired driving count although, if it were necessary, clearly would have found him guilty in respect to that count as well. Dated this 4th day of August, A.D. 2000, in the City of Prince Albert, in the Province of Saskatchewan. T.B. Bekolay, Provincial Court Judge

The accused was charged with operating a motor vehicle while impaired contrary to s.255(1) and s.253(a) of the Criminal Code and with having consumed alcohol in such a quantity that his blood alcohol concentration exceeded .08 contrary to s.253(b) and s.255(1). The accused contended his right to be secure against unreasonable search and seizure as guaranteed by s.8 of the Charter and his right not to be arbitrarily detained or imprisoned as guaranteed by s.9 of the Charter were breached. In issue was whether the RCMP officer had the jurisdiction to carry out his duties as a peace officer in the City of Prince Albert; if so, was he acting in the lawful execution of his duties in conducting random stop. HELD: The accused was found guilty of driving with a blood alcohol level greater than .08. A judicial stay was entered in relation to the impaired count on which he would have been found guilty if it were necessary. 1)The language used by Parliament in the Royal Mounted Police Act is clear, broad and unambiguous as it was their obvious intention to create a police force that operates without jurisdictional barriers throughout the entire country of Canada. When there is a limitation on their duties it is clearly stated. The Police Act does not mention any exclusivity between one force and another. Given the ultra vires statute construction doctrine it would not be appropriate for provincial legislation to take away powers given by the Federal legislation. The Police Act must be read in context as providing a manner of funding policing not a manner of taking away jurisdiction granted to RCMP officers. 2)The law is now clear that the police can detain vehicles as long as they do so for the purposes of checking for sobriety, licences, ownership, insurance and other mechanical fitness of motor vehicles. The R. v. Emke decision is outdated. 3)The officer was acting in the lawful execution of his duty. There was no breach of the accused's rights under the Charter.

3_2000canlii19624.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Marjan Enterprises Ltd. v. Meisner, 2003 NSSC 85 Date: 20030409 Docket: S.H. 190327 Registry: Halifax Between: Marjan Enterprises Limited, body corporate, with Head Office in Bedford, in the Halifax Regional Municipality, Province of Nova Scotia Plaintiff/Applicant v. J. Denise Meisner Defendant/Respondent Judge: The Honourable Justice C. Richard Coughlan Heard: December 11, 2002, (in Chambers) in Halifax, Nova Scotia Counsel: Deborah E. Gillis, Q. C. for the Plaintiff/Applicant Frank W. MacDonald, for the Defendant/Respondent Coughlan, J.: [1] Marjan Enterprises Limited (vendor) applies for an order pursuant to the Vendors and Purchasers Act, R.S.N.S. 1989, c. 487 for an order declaring that the objection raised by the defendant, J. Denise Meisner (purchaser), is without merit. [2] Section of the Act provides: Application for determination of question vendor or purchaser of any interest in land or his representative may, at any time and from time to time, apply in summary way to judge or local judge of the Trial Division of the Supreme Court in respect of any requisition or objection or any claim for compensation, or any other question arising out of or connected with the contract and the judge or local judge may make such order upon the application as appears just, and refer any question to referee or other officer for inquiry and report. [3] The parties entered into an agreement of purchase and sale dated October 25, 2002. The agreement provided for closing of the transaction on November 14, 2002. The agreement contains the following clause: 15. Time shall in all respects be of the essence in the Agreement. In the event of written agreement of extension, time shall continue to be of the essence. This Agreement shall enure to the benefit of and be binding upon the parties hereto, their respective heirs, executors, administrators, successors and assigns. This Agreement is to be read with all changes of gender or number required of the context. [4] The purchaser’s solicitor made an objection to title by letter dated November 8, 2002. There was communication between the solicitors for the vendor and for the purchaser. The purchaser’s solicitor did not accept the answer to the objection to title given by the vendor’s solicitor. The purchaser’s solicitor agreed to extend the closing date to November 15, 2002 by letter dated November 14, 2002. The present application was commenced November 28, 2002. [5] In dealing with when an application pursuant to the Act may be brought various texts provide as follows. In the Nova Scotia Real Property Practice Manual, Butterworths, C.W. MacIntosh, Q.C. states at p. 4-41: The application must be commenced and heard before the date for closing, which is not automatically extended by reason of the application. Any extension must be agreed to by the parties. Authority for the statement is given as Raymond and Raymond v. Doubleday and Doubleday (1984), 65 N.S.R. (2d) 179 (T.D.). [6] In Lamont on Real Estate Conveyancing (2nd ed.), Carswell, it states at p. 11-1: As stated in Chapter 10, if valid requisition is submitted and the answer does not appear satisfactory, resort can be had to vendor’s and purchaser’s application for an adjudication on the apparent title problem. Such an application for an adjudication must be commenced and heard before the closing date for the transaction in order to preserve the parties’ rights to close or not to close on the closing date. It is misconception to think that by proceeding with vendor’s and purchaser’s application that the closing date of the transaction will be automatically put over until the application is heard. The closing date will only be postponed if the parties agree. [7] In Di Castri, The Law of Vendor and Purchaser (3rd. ed.), it states at p. 13-134.1: The summary procedure, so far as the jurisdiction permits, avoids the necessity of resorting to an action for specific performance, but is available only during the pendency of the contract and not after its completion. ... The authority for the statement in Di Castri is given as Re Buhlman and London Life Ins. Co. (1932), 41 O.W.N. 17. [8] Both Raymond and Raymond v. Doubleday and Doubleday, supra and Re Buhlman and London Life Ins. Co., supra are cases where the transactions were completed and the Courts held an application pursuant to the Act is not available after the transaction is completed. Those cases are not authority that an application must be commenced and heard before the date of closing. In this case, the contract was not completed, but terminated upon the date for closing passing without extension. [9] disagree an application pursuant to the Act must be completed before the closing date. Such an interpretation is too draconian. There may be many reasons, beyond the control of an applicant, why the application cannot be heard before closing date. However, it is within the control of an applicant to commence an application before the closing date of the transaction. While an application does not have to be heard before the date of closing, it must be commenced before the date of closing. [10] Time was of the essence in the agreement. The purchaser agreed to extend the closing date to November 15, 2002. The contract ended before the application was commenced. The application was not made during the pendency of the contract. [11] The application is dismissed. [12] If the parties are unable to agree, will hear them on the issue of costs. C. Richard Coughlan, J.

The vendor's application for an order declaring that the purchaser's objection was without merit was commenced 13 days after the closing date. Application dismissed; although such an application does not have to be heard prior to the closing date, it does have to be commenced prior to that date.

3_2003nssc85.txt

nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 40 Date: 20090317 Between: Docket: 1580 Theresa Nadeau and Clayton Clement, Homer Clement and Blaine Clement and Hugh McLaughlin, Glenn Forrester and Robert Heinrichs Respondents Coram: Gerwing, Jackson and Richards JJ.A. Counsel: Ian D. McKay, Q.C. for the Appellant Rod J. Rath for McLaughlin, Forrester and Heinrichs Tyler McCuaig for the Clements Appeal: From: 2008 SKQB (CanLII) Heard: March 17, 2009 Disposition: Dismissed (Orally) Written Reasons: March 23, 2009 By: The Honourable Madam Justice Gerwing In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr Justice Richards Gerwing J.A. [1] This is an appeal from a judgment in which the trial judge held that the sale of farm land by the then 79-year-old appellant was valid and that her solicitor in the transaction was not negligent. [2] The appellant sought below to set aside the transaction under various heads of contract law including duress, undue influence, unconscionability, equitable fraud and mistake. [3] The facts briefly are that the appellant, widow, agreed to sell four quarters of farmland, including residence and some grain bins on the land, to the respondents, the Clements, by lease option agreement. The total price was $120,000.00 allocated $100,000.00 for the land and $20,000.00 for the house. The terms were indeed favourable to the purchasers, the monies being paid over seven years with most deferred until the final year. There was no interest. [4] However, the appellant was permitted to reside in the house for her lifetime if she paid the utilities and the property taxes until December 31, 2006. [5] It is not necessary for us to comment on the analysis the trial judge did of each of the potential attacks to the validity of the contract as against the Clements. The issues raised in the grounds of appeal are factual and the sole matter of significance before us was whether the standard of review in H.L. v. Canada (Attorney General)[1] had been met. [6] The trial judge concluded that the plaintiff, when she entered the contract, had full capacity. He saw no reason on the evidence to doubt her competence and that is fully supported by her testimony at the trial when she was in her late 80’s.[2] [7] He further concluded that the contract was advantageous to the Clements. He was not satisfied with the valuation of the residence and particularly with occupancy rights thereof from the testimony of either appraiser but concluded that the total price probably reflected the land value. He further concluded: [70] Clayton Clement was more knowledgeable as to the value of the land than the plaintiff. One only needs to look at the 1999 rural municipality map to observe that Clayton Clement’s name appears in the municipal records as the owner of many sections of land in the immediate vicinity. There is evidence to suggest that Clayton Clement was motivated to acquire the Nadeau land for his own purposes, not just to help out the plaintiff by taking it off her hands and thus relieving her of the burden of owning it. [71] It is understandable that at the time of the agreement neither Therese Nadeau nor Clayton Clement gave much consideration to the value of the residence and yardsite. Clayton Clement said he had no use for it, so it had no value to him. From the plaintiff’s viewpoint, the fact that she had the right to keep the residence and yardsite for as long as she wanted could easily have led her to exclude or disregard the value of the residence and yardsite as separate component of the value of the asset she was selling.[3] [8] The appellant in the course of her testimony indicated that she was aware that it was good deal for the Clements and did intend to benefit the Clements. [9] The trial judge further found that there was no evidence of any pressure or deception by the Clements with respect to her entering into the contract; they were not in position of presumed undue influence and did not in fact exercise such influence. The appellant had independent legal advice, the quality of which will be discussed below, and the Clements had their own lawyer. [10] In concluding that there was no pressure and that the appellant, competent and fully capacitated adult, had entered into the contract with the intention of conferring benefit and fully understanding it, the trial judge noted the fact that the contract was implemented and the appellant resided on the land for two years. There was no complaint made until her daughter, from whom the contract had been concealed by joint agreement between the appellant and the Clements, found out what had happened. [11] In our view these central facts negate any attempt to overturn what is on its face valid contract. The trial judge entered into legal analysis of each of the points raised and we should not be taken as having approved all of these; that is, in our view in some instances he was overly generous to the appellant in even embarking on an analysis of the potential weapon to invalidate the contract. [12] In the end result the sole matter of significance in this is whether the central facts on the terms of the contract, the competence of the appellant and the relationship with and conduct of the Clements was supported by probative evidence. There is no doubt that it was. In those circumstances it is impossible for us as a court of appeal to interfere with these findings, even had we wished to. On these facts no possible attack on the contract exists. [13] As noted, the appellant also sought relief against her solicitor for negligence. Again the trial judge made findings of fact which negate this claim and again the evidence amply supports his conclusions. His findings of fact in this regard are as follows: [88] As to the position of the solicitors, the following facts are important: 1. Generally, McLaughlin was professionally competent and highly regarded by his peers, who recognized his ability to handle transactions of this kind. 2. McLaughlin knew Therese Nadeau quite well and for long time from his previous dealings with her, in particular as to the Noel Nadeau estate. 3. Therese Nadeau placed her trust in McLaughlin to the extent that even after she became unhappy with regard to the Clements transaction she engaged McLaughlin to represent her in connection with the purchase of her condominium in Swift Current. 4. It is clear from McLaughlin’s May 2, 2002, memorandum that he was not “overly enthusiastic about the agreement”, but that Therese Nadeau was “gung hoe [sic] to sign it and to sell the land”. Certainly McLaughlin had reservations, but it is not clear whether his reservations had to do with the price, the fact that there was no provisions for interest on deferred payments, the fact that Therese Nadeau was paying the taxes, some combination of these factors, or other factors entirely. Quite properly, though, he deferred to the wishes of his client because he regarded her as competent and she made it clear what she wanted and her determination to proceed.[4] [14] There was expert evidence on behalf of the appellant at trial suggesting that in the end result the critical thing was for the solicitor, once he had determined his client had capacity, to be sure that the nature of the contract was understood. Here it is of significance that the contract was drawn in very simple terms easily comprehensible to lay person. The trial judge found that, although the senior Mr. Clement was present at the initial interview when the terms of the contract were explained to the solicitor for the appellant, there was no convincing evidence that the subject of the value of the land was not appropriately and adequately discussed. The trial judge noted this and then accepted the testimony of the appellant’s expert in legal practice that it is the buyer’s decision how much to pay and that the lawyer’s duty with respect to his client is to ensure that she has directed her mind to the subject and is satisfied to proceed. The trial judge found that the respondent McLaughlin was not shown to have breached or failed any professional obligation. After the simply worded contract was drawn it was forwarded to her with cover letter suggesting she read it carefully. [15] When she returned to sign the contract, some 10 days later, after her signature was affixed to it, she met with McLaughlin privately and was prepared to proceed. As noted the parties then lived with the contract for period of at least two years. [16] The appellant in this Court made much of the fact that she signed the contract before the private meeting with McLaughlin. The trial judge in dealing with this point concluded that the contract was not in force until after the meeting when it was delivered to the Clements. In our view there was probably insufficient evidence to conclude whether or not the contract was indeed effective on her signature or when delivered but in the end result we are of the view that question is irrelevant. First, contrary to what the appellant suggests, an independent meeting is not absolutely necessary for the solicitor to ensure comprehension of the contract. It is of course desirable but the critical matter is for the solicitor to satisfy himself that the client comprehends the transaction. The trial judge found that the appellant understood all aspects of the contract. Secondly, the matter of the timing of the private meeting is not relevant, given that the appellant after the meeting continued to be prepared to enter into and perform the contract. If she had manifested some unease after the signature and meeting but before the delivery, other issues and no doubt other evidence would have been considered in determining when the contract became effective in the circumstances. Here that matter is of no moment in determining the issue of the solicitor’s negligence. [17] Again, as with the attempts to set aside the contract, the claims against the solicitor are without a factual basis. The trial judge again made the critical findings of fact. These findings, including comprehension and desire to provide benefit to the Clements, are amply supported in the evidence, including the candid admissions of the appellant in her testimony at trial. [18] Accordingly, the appeals against both the Clements and the solicitors are dismissed. Each will have costs against the appellant, but all of the Clements will receive one set of costs as will all the named solicitors. [1] 2005 SCC 25 (CanLII), [2005] S.C.R. 401. [2] Trial judgment, 2008 SKQB (CanLII) at para. 68.

This is an appeal from a judgment in which the trial judge held that the sale of farm land by the then 79 year old appellant was valid and that her solicitor in the transaction was not negligent. The appellant widow agreed to sell four quarters of farmland, including residence and some grain bins on the land, to the respondents by lease option agreement. The total price was $120,000. The terms were favourable to the purchasers, the monies being paid over years with most deferred until the final year. There was no interest. However, the appellant was permitted to reside in the house for her lifetime if she paid the utilities and the property taxes. The trial judge noted that the appellant resided on the land for years and there was no complaint made until the appellant's daughter, from whom the contract had been concealed by joint agreement between the appellant and the purchasers, found out what had happened. The sole issue on appeal was the applicable standard of review in H.L. v. Canada (Attorney General) [2005] 1 S.C.R. 401. HELD: Appeal dismissed. 1) There is no doubt that the central facts as found by the trial judge regarding the contract, the competence of the appellant and the relationship with and the conduct of the purchasers was supported by probative evidence. It is impossible for an appeal court to interfere with those findings, even if the Court had wished to. 2) With regard to the allegation of negligence against appellant's lawyer, contrary to what the appellant suggest, an independent meeting is not absolutely necessary for the solicitor to ensure comprehension of the contract. It is of course desirable, but the critical matter is for the solicitor to satisfy himself that the client comprehends the transaction. The trial judge found that the appellant understood all aspects of the contract. The matter of the timing of the private meeting between the appellant and her lawyer is not relevant, given that the appellant after the meeting continued to be prepared to enter into and perform the contract. If she had manifested some unease after she signed the agreement and then met with her lawyer but before the delivery of the contract to the purchasers, other issues and no doubt other evidence would have been considered in determining when the contract became effective in the circumstances. The claims against the appellant's solicitor are without a factual basis.

e_2009skca40.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 498 Date: 2012 11 28 Docket: Q.B.G. 1607/2009 Judicial Centre: Regina BETWEEN: DARIUS TSATSI and TONY MERCHANT Counsel: Douglas H. Christie for the plaintiff Rod J. Rath, Q.C. for the defendant Reginald A. Watson, Q.C. for the Sunrise Health Region Charita Ohashi for Don McMorris FIAT BARRINGTON-FOOTE, J. November 28, 2012 [1] The defendant has applied pursuant to Rule 41(2) of the Queen’s Bench Rules for an order that this action and Tsatsi v. College of Physicians and Surgeons of Saskatchewan, Don McMorris and The Sunrise Health Region, being Q.B. 1008 of 2011 (the “College Action”), be tried together. The defendant has also applied pursuant to Rule 169 for leave to amend his Statement of Defence, by pleading:3A Such words as were spoken or written by the Defendant are true, and the Defendant asserts that the alleged defamation was justified in law. [2] This is a defamation action, based on statements that the plaintiff alleges were made by the defendant on June 1, 2009. The statements made specific allegations about the plaintiff’s failure to properly read an x-ray, and also alleged that the plaintiff has failed certification exams and that health officials knew the plaintiff should not be doing the work he was doing. The College Action is also a defamation action. It relates to statements made about the competence of the plaintiff as radiologist which the plaintiff says were published both before and after June 1, 2009. [3] The defendant says that there are common issues of fact between the two actions. He submits that trying these actions together would be in the interests of judicial economy, and avoid the possibility of conflicting findings. [4] The defendant says that the claims are different. He says that this claim relates to single issue relating to the x-ray, and does not relate to the broader issues of competence at issue in the College Action. He acknowledges that if the statements alleged in the College Action were published before June 1, 2009, his client’s reputation may already have been damaged, which would be relevant to the assessment of damages in this claim. He submits, however, that any published statements at issue in the College Action would be matter of public record, and could accordingly be discovered and proved by the defendant regardless of his participation in the College Action. [5] The parties also advised the court that there is class action outstanding against various regional health authorities which raises issues relating to the plaintiff’s competence. In that action, the defendant is plaintiff’s counsel. However, that action is stalled, and the defendant has not applied to have it heard together with this action. Counsel noted that if the defendant succeeds in this application, he will gain tactical advantage in the class action through his participation in the College Action, as that action deals with competency issues which are relevant to the class action. [6] As noted by Laing C.J.Q.B. (as he then was) in Capital Sewer Services Inc. v. Saskatoon (City), 2010 SKQB (CanLII), 349 Sask.R. 310: 15 Rule 41(2) is discretionary rule which is resorted to and utilized when there are sound reasons of judicial economy, or avoidance of disparate rulings arising out of the same facts or law, to justify the actions being tried at the same time. The key consideration in such request is that the actions have questions of law or fact in common, or that the background evidence required to place the issues in context is sufficiently common that judicial economy would be achieved by having the actions tried at the same time. The fact that the actions arise out of the same transactions or occurrences is relevant, but not determinative, in the absence of common questions of fact or law. [7] Similarly, Baynton J. stated as follows in Remai Financial Corp. v. 568320 Saskatchewan Ltd. (1996), 1996 CanLII 7100 (SK QB), 150 Sask.R. 292, [1996] S.J. No. 732 (QL) (Sask.Q.B.): 11 It is trite law that the joinder of parties and actions is permitted for the two basic related policy reasons that underlie many civil procedural rules: economy and justice. Economy of time and of expense to litigants and the justice system as whole is usually realized through joinder to avoid multiple actions and trials. This is confirmed by the provisions of s. 44.7 of the Queen's Bench Act. Justice and the perception of justice is usually enhanced through joinder to avoid the risks of inconsistent determinations of common issues in separate actions and trials. Watson, Gary D., Joinder of Defendants Sued in the Alternative: Solicitors as Co-Defendants, March, 1981, vol. 2, No. Advocates' Quarterly 365. 12 For the policy reasons stated, agree with Gary D. Watson that in most cases, justice is better served by joining actions than by permitting them to proceed separately. narrow and technical application of the res judicata principle poses very practical problem for the applicants. Justice is not served if they are found liable in the main actions and then in the alternate action have to face the risk and expense of litigating again, many of the same issues determined in the main actions. Nor is justice served if the findings of fact or law in the alternate action are inconsistent with the findings in the main actions. [8] In this case, there are common questions of fact between the two actions at issue. The statement of claim in this action engages the issue of competence and the position taken by “health officials”. The plaintiff’s competence is also at issue in the College Action. Further, the publication of the statements at issue in the College Action may have damaged the plaintiff’s reputation prior to the statements at issue in this action. There is risk of inconsistent findings if these matters are not tried together, or at the same time. Judicial economy is also at stake. For these reasons, an order pursuant to Rule 41(2) is appropriate. [9] The defendant and defendants in the College Action submitted form of order for consideration. It provided that the actions be tried one after the other, with the College Action proceeding first, and that the evidence in the College Action be evidence in this action. It does not speak to the discretion of the trial judge to determine how the two actions should proceed. [10] am not satisfied that this draft order provides for these trials to be conducted in manner that best achieves the goals of judicial economy and justice that are the underpinning for joinder of actions. The order in which the trials are conducted, the use of evidence from one action in the other, and any other matters that must be addressed are better left for determination by the trial judge. I accordingly order as follows:1. Darius Tsatsi v. Tony Merchant, being Q.B.G.1607 of 2009, and Darius Tsatsi v. College of Physicians and Surgeons et al., being Q.B.1008 of 2011, shall be tried one immediately after the other, in the manner determined by the trial judge. 2. The defendant has leave to amend his Statement of Defence in Q.B.G. 1607 of 2009 by adding the following paragraph: 3A Such words as were spoken or written by the Defendant are true, and the Defendant asserts that the alleged defamation was justified in law. [11] Costs of this application shall be in the cause in Q.B.G. 1607 of 2009. J. B.A. BARRINGTON-FOOTE

The defendant applied pursuant to Queen's Bench Rule 169 for leave to amend his Statement of Defence. This is a defamation action and the amendment would add that the words spoken by the defendant were true and that the alleged defamation was justified in law. The action relates to statements made about the plaintiff's failure to properly read an X-ray and his failure to pass certain certification exams and that health officials knew that he should not be performing the work he was doing. There is another defamation action, described in this judgment as the College Action. The defendant applied pursuant to Rule 41(2) that his action and the College Action be tried together because there are common issues of fact between the two, albeit different actions. Trying them together would be in the interests of judicial economy and avoid the possibility of conflicting findings. HELD: The Court ordered that the two actions be tried one immediately after the other in the manner determined by the trial judge and that the defendant be given leave to amend his Statement of Defence.

e_2012skqb498.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 249 Date: 2017 08 22 Docket: QBG 1409 of 2017 Judicial Centre: Regina BETWEEN: HOME AUTOMATED LIVING, INC. and SECURTEK MONITORING SOLUTIONS INC. Counsel: Breanna Mussell for the applicant Stephanie Yang for the respondent JUDGMENT KALMAKOFF J. August 22, 2017 INTRODUCTION [1] This is an application by Home Automated Living, Inc. [HAL], seeking leave to appeal the decision of an arbitration panel. The arbitration panel was constituted to resolve commercial contractual dispute between HAL and the respondent, SecurTek Monitoring Solutions Inc. [SecurTek]. [2] For reasons that follow, I have determined that HAL’s application for leave must be dismissed. FACTUAL BACKGROUND [3] HAL and SecurTek had contractual relationship which began in February of 2008. HAL produces software, technology and services related to home automation. SecurTek, Sasktel subsidiary, wanted to have the exclusive right to market, licence and distribute HAL’s products in Canada. Accordingly, the parties entered into three separate contracts designed to accomplish those business goals. They were (i) the International Distribution and Software Licence Agreement [IDSL]; (ii) the Software Customization Agreement [SCA] and (iii) the Escrow and Software Modification Agreement [ESMA]. These contracts each provided, among other things, that any disputes which could not be resolved between the parties would be settled by binding arbitration. [4] The IDSL was the primary operating agreement or contract between HAL and SecurTek. It was signed for three year term, and was automatically renewed for successive three year terms, unless either party cancelled the contract, in writing, at least 60 days prior to the renewal date. [5] The relevant portions of the IDSL dealing with cancellation or termination of the contract read as follows: 2.2 The term of the licence granted under this Agreement shall commence upon execution of this Agreement by SecurTek and shall continue thereafter for period of three (3) years. This agreement shall automatically renew unless either party cancels in writing at least sixty (60) days prior to the renewal date. SecurTek may terminate this Agreement for cause. This licence may be terminated by HAL for cause. SecurTek agrees upon termination of this Agreement to return the HALhms and all documentation together with all copies in any form in its possession. For cause shall be defined as either party not complying with the terms and conditions found in this agreement. 8.1 The term of this Agreement shall be from February 22, 2008 and continue in accordance with 2.2 herein. 8.2 This Agreement may be terminated at any time upon one hundred and eighty (180) days written notice by either party. Both parties agree to make reasonable commercial efforts to ensure any subsequent transition following termination is effectively concluded with minimal disruption. [6] It is clear from the wording of those provisions that there were three options for terminating the IDSL: (1) by giving notice 60 days prior to the renewal date, (i.e. 60 days prior to February 21, 2011, or February 21, 2014, etc.); (2) at any time, for cause; and (3) in other circumstances, by giving 180 days notice. [7] In this case, the agreement between the parties reached the renewal date in February of 2011 without incident, so the IDSL was automatically renewed for second three-year period. [8] In July of 2012, the parties executed contract that modified the IDSL. It was titled Modification to the International Distribution and Software Licence Agreement [MIDSL]. As one would gather from the title, it modified portions of the IDSL. [9] The IDSL contained clause relating to the minimum sales target that SecurTek was required to meet in order to maintain its exclusive distribution right. It read as follows: 4.3 Minimum sales SecurTek Agrees that it must make an average of at least 25 sales of the HALhms per month over each quarterly period in order to maintain an exclusive distribution right. SecurTek shall at HAL’s discretion lose exclusive distribution rights herein for failure to reach this goal. [10] The MIDSL, which the parties executed on July 9, 2012 amended the minimum sales requirement in clause 4.3, by substituting the following provision: 4.3 Minimum sales SecurTek Agrees that it must make 25 new sales of the HALhms per month in order to maintain exclusive distribution rights granted herein, or purchase the equivalent in new pre-paid licences of HALhms. [11] Eventually, dispute arose. The licences referred to in clause 4.3 sold for $1,000.00 each. HAL took the position that clause 4.3, as it appeared in the MIDSL, required SecurTek to pay HAL minimum of $25,000.00 per month, regardless of how many licences SecurTek actually sold. SecurTek took the position that, if it failed to sell 25 licences, it simply lost the right to exclusive distribution, rather than being obligated to pay HAL for 25 licences regardless of how many were sold. HAL alleged that SecurTek was not meeting its sales obligations, and demanded payment of the shortfall. [12] SecurTek eventually gave notice to HAL, on December 13, 2013, that it would not be renewing the agreements at the end of the three year term which expired on February 21, 2014. [13] HAL took the position that SecurTek breached the contract by failing to comply with the term regarding payment for licencing fees, and also that SecurTek failed to properly terminate the contract, thus making it liable for any products received from HAL that were not paid for. [14] Accordingly, as per the terms of the contracts, an arbitration panel was constituted, and appointed to resolve the dispute. [15] The arbitration panel, in 2-1 decision, ruled that the IDSL, as amended by the MIDSL, did not impose an obligation on SecurTek to purchase set number of licences from HAL. Accordingly, HAL’s claim was dismissed. [16] SecurTek also counter-claimed against HAL. The majority of the panel ruled that, given its disposition of HAL’s claim, the counter-claim was moot and, in any event, did not prove that SecurTek had suffered any damages. SecurTek takes no issue with this finding. POSITION OF THE PARTIES [17] HAL argues that leave to appeal the arbitrators’ decision should be granted, because it is proposing to appeal on the basis of errors in law in the arbitration panel’s majority decision. HAL takes the position that the agreements signed with SecurTek, although not specifically referring to right of appeal on such basis, contain an implied condition that permits the parties to appeal arbitrators’ decisions, with leave, on the basis of errors in law. As such, HAL says that s. 45(2) of The Arbitration Act, 1992, SS 1992, A-24.1 [Act] permits the application, and that it has met the criteria to be granted leave. [18] SecurTek argues that leave to appeal should not be granted, for number of reasons. First, it argues that its contracts with HAL contain dispute resolution mechanism (final and binding arbitration) which “contracts out” of s. 45(2) of the Act. As such, HAL cannot seek leave to appeal. In the alternative, if the right to seek leave to appeal is not abrogated by the language of the contracts, SecurTek argues that the questions HAL proposes to raise on appeal are questions of mixed law and fact, rather than questions of law, and even if they are questions of law, they are not of sufficient importance to compel the court to grant leave under s. 45(2). 1. HAL cannot seek leave to appeal, because HAL and SecurTek explicitly “contracted out” of any right to appeal decisions of the arbitration panel. [19] In this case, the relationship between HAL and SecurTek was governed by contracts. Those contracts set out very clear and well-defined procedures for dispute resolution. In fact, the IDSL, SCA and ESMA all contained identical clauses in that respect. Under the heading “Arbitration”, at Clause 26, the IDSL reads as follows: 26.1. The parties agree that they will use their best efforts to amicably resolve any dispute arising out of or relating to this Agreement. The parties shall meet and discuss any disputes prior to the initiation of an arbitration and shall grant the alleged wrong doer an opportunity (30 day minimum) to cure any defects. 26.2 Any controversy, claim or dispute that cannot be so resolved shall be settled by final and binding arbitration in accordance with the expedited rules of the American Arbitration Association (AAA), however the AAA’s services shall not be used, and judgment upon the award rendered by the arbitrator or arbitrators may be entered in any court having jurisdiction thereof. Said AA rules shall be modified as follows: no in person hearings shall be required with all hearings via telephone unless both parties agree otherwise; discovery shall be limited to 30 requests total; Each party will file single brief outlining its point of view and submitting any facts; said brief may be no longer than ten (10) pages double spaced with one (1) inch margins, eleven (11) point times new roman font; the factual attachments, table of contents, authorities shall not be part of said ten (10) pages. 26.3. Any such arbitration shall be conducted through the use of briefs only and at the discretion of the arbitrators there may be telephonic hearings. In person hearings shall not be allowed. Each party may make one set of each type of discovery request and one dispositive motion. There shall be three arbitrators where each party shall choose one arbitrator and those two arbitrators shall choose the third who shall be in charge of the panel. No Court shall have subject matter jurisdiction over this matter until after the arbitrators has (sic) rendered reasoned opinion. The arbitrators’ decision shall be final without any possibility of appeal other then (sic) on the issues of whether this arbitration clause is valid. The arbitration shall be expedited and must be concluded within sixty (60) days. [Emphasis Added] [20] Clauses 26.1, 26.2 and 26.3 of the SCA, and clauses 5.1, 5.2 and 5.3 of the ESMA, respectively, contain identical wording. [21] It is clear that these contracts are “arbitration agreements”, within the meaning of ss. 2(a) and of the Act. Section 45 of the Act deals with appeals from decisions of arbitrators in such circumstances. It reads, in part, as follows: 45(1) If the arbitration agreement so provides, party may appeal an award to the court on question of law, on question of fact or on question of mixed law and fact by notice of motion that briefly states the grounds of the appeal. (2) If the arbitration agreement does not provide that the parties may appeal an award to the court on question of law, party may appeal an award to the court on question of law with leave, which the court shall grant only if it is satisfied that: (a) the importance to the parties of the matters at stake in the arbitration justifies an appeal; and (b) determination of the question of law at issue will significantly affect the rights of the parties. [22] In the circumstances of this case, s. 45(1) of the Act does not give HAL the right to appeal the decision of the arbitration panel, because the agreements in place between HAL and SecurTek do not provide for right of appeal. [23] The question is whether s. 45(2) permits HAL to obtain leave to appeal on question of law, notwithstanding the absence of such provision in the agreements. HAL takes the position that this section provides the ability to obtain leave. SecurTek, on the other hand, argues that while s. 45(2) may permit parties to obtain leave to appeal in some cases, it does not apply here, because the parties intentionally “contracted out” of it. [24] Section of the Act provides that parties to an arbitration agreement may agree, expressly or by implication, to vary or exclude any provisions of the Act (subject to certain exceptions which are not applicable to this case). It is trite law that parties who have commercial contractual relationship, which contains an arbitration agreement for dispute resolution, can, by agreement, abrogate appellate review of the arbitrator’s decision: Bank of Nova Scotia Span West Farms Ltd., 2003 SKQB 306 (CanLII), 237 Sask 175; Chypiska Aspen Homes Ltd., 2010 SKQB 376 (CanLII), 365 Sask 160. In Labourers' International Union of North America, Local 183 Carpenters and Allied Workers Local 27 (1997), 1997 CanLII 1429 (ON CA), 34 OR (3d) 472 (WL) (Ont CA) the court noted at paras. 22-23 that “final and binding” clauses, such as the ones used in the agreements between HAL and SecurTek, while not necessarily precluding judicial review, certainly reflect an intention to exclude all rights of appeal, even those conferred by statute. [25] Parties to contract can, in essence, agree to structure dispute resolution mechanisms in any fashion they want. This may include eliminating statutory appeals. As read the relevant jurisprudence, where the language used in the agreement between parties is clear and precise, and indicates clear intention on their part to treat the decision of an arbitrator as final and binding, the balance tips very heavily in favour of finding that the parties intended to eliminate any ability to appeal from the arbitrator’s decision. The use of the words “final and binding” demonstrates that the parties have made the choice to resolve disputes through the expeditious process of arbitration; choice which reflects an intention to avoid the prospect of potentially protracted and costly litigation, even if it means there is chance they will be bound by an unfavourable decision from the arbitrator. [26] In this case, the language used in the agreements between HAL and SecurTek, in my view, could not be more clear. It says that the “arbitrators’ decision shall be final without any possibility of appeal”, save for on the question of whether the arbitration clause itself is valid. It is obvious from the wording of the clause that the parties had turned their minds to the question of dispute resolution, and intended that the arbitrators’ decision would not be subject to appeal, except on that very narrow issue. There is simply no other reasonable interpretation of such wording. [27] Furthermore, the fact that the parties referred to one, and only one, specific instance in which an appeal would be permissible is significant. It leads me to conclude that the absence of reference to any other circumstances in which appeal would be permitted was not inadvertent, but intentional. If the parties had intended, for instance, to allow an appeal from the arbitrators’ decision based on an error of law, they could easily have said that in the agreements. They did not. Therefore, must conclude that they had no intention to permit an appeal on that basis. [28] For the same reason, reject HAL’s argument that the ability of the parties to appeal an arbitrators’ decision based on an error of law must be implied as term of the contract. It is fair to say that the terms of contract cannot always be confined to those expressly stated, and each case must be decided on its own facts and circumstances. The context and background of contract should always be carefully considered, along with the precise terms written into it, when considering whether it is appropriate to find an implied term. [29] The general presumption in contractual interpretation is that parties have expressed every material term which they intended to govern their agreement: Benfield Corporate Risk Canada Ltd. Beaufort International Insurance Inc., 2013 ABCA 200 (CanLII), [2014] WWR 772. Generally speaking, as the Supreme Court of Canada noted in Canadian Pacific Hotels Bank of Montreal, 1987 CanLII 55 (SCC), [1987] SCR 711, terms of contract may be implied where such terms (i) are necessary to give business efficacy to contract (i.e., they are terms which the parties would obviously have assumed to be part of the contract); (ii) can be implied as matter of custom or usage (which requires evidence that the parties would have understood such custom or usage to be applicable); or (iii) can be implied as legal incidents of particular class or kind of contract (i.e. terms implied in law). [30] The court can imply terms that are in the nature of things that “it goes without saying”, and are necessary to give business efficacy to the transaction: Highwood Distillers Ltd. Panorama Public Industrial Communications Ltd., 2005 ABCA 107 (CanLII) at para 13, 363 AR 239. The implication of the term must have certain degree of obviousness to it, and if there is evidence of contrary intention on the part of either party, the implied term may not be found: M.J.B. Enterprises Ltd. Defence Construction (1951) Ltd., 1999 CanLII 677 (SCC), [1999] SCR 619 [M.J.B. Enterprises]. While it is clear that there are some cases in which term must be implied in order to ensure that the intention of the parties is not defeated, the court does not have licence to reconstruct contract on equitable principles, or from the point of view of what the parties should reasonably have contemplated. [31] With the greatest of respect to the position advanced by HAL, a term permitting an appeal from the arbitrators’ decision on an error of law simply does not fall into the category of the obvious, or something that “it goes without saying”, in the factual matrix of this case. Such an implied term is not akin, for instance, to the implied term of good faith in contractual negotiation, or the implied term of good workmanship in contracts for repair or renovation work, or the implied term of reasonable notice of termination in contracts of employment. [32] Furthermore, term should generally not be implied where it is inconsistent with the express terms of the contract: M.J.B. Enterprises; Fort Frances (Town) Boise Cascade Canada Ltd., 1983 CanLII 47 (SCC), [1983] SCR 171. In the context of this case, the contractual language the parties used is clear: they intended to resolve disputes by way of final and binding arbitration. They clearly stipulated that such resolution would not be subject to appeal, unless there was question of validity of the arbitration clause itself. Implying term which would permit an appeal based on an error unrelated to the validity of the arbitration clause would be inconsistent with the express terms of the contract. Accordingly, can see no basis upon which to imply an additional term, such as the right to appeal from an error of law made by the arbitrator. [33] Finally, on this point, HAL has argued that the terms of the arbitration agreement were altered by correspondence of counsel. Correspondence, it says, which effectively nullified the “final and binding” nature of the arbitration clauses. In particular, HAL points to the exchange of correspondence between Will Egan (counsel for SecurTek at the time) and Robert MacKay (counsel for HAL at the time). This correspondence, as read it, was in the vein of setting out the procedures to be followed during the arbitration. Questions of what material would be filed for the arbitration panel to consider, timing, and governing law were addressed. In that regard, Mr. Egan’s letter to Mr. MacKay, dated May 5, 2014, ended with the following: 5. The governing law is to be the Province of Saskatchewan. 6. Arbitrators’ decision will be final. [34] To that, Mr. MacKay responded with letter dated September 8, 2014. He proposed slightly different procedure, with slightly different timelines than did Mr. Egan, but ended his letter with the following: Generally, the contract shall govern, then the rules provided by the American Arbitration Association then the laws of the province of Saskatchewan. [35] In response to that, on September 11, 2014, Mr. Egan wrote: have reviewed your letter outlining the proposed procedures and forms and can advise that they are acceptable to SecurTek. [36] HAL argues that because Mr. Egan’s first proposal included the words “Arbitrators decision will be final”, and Mr. MacKay’s response did not specifically agree to that term, but instead said “Generally the contract shall govern…”, should conclude that HAL was not agreeing to the finality of the arbitrators’ decision and, as such, cannot be taken to have abrogated its right to appeal. [37] With respect, cannot accede to this argument. The language of the agreements, in my view, is so clear with respect to the arbitration clauses, and the finality of the arbitrators’ decision, that it cannot be overridden by vagueness or inadvertent omission. The intention expressed in the arbitration clauses of the agreement is clear, and it would take an equally clear statement to convey different intention. Furthermore, the final sentence of Mr. MacKay’s letter says “[g]enerally the contract shall govern” (emphasis added) and, as have repeated several times, the contract was very clear about the finality of the arbitrators’ decision and the very limited nature of potential appeals. [38] Accordingly, find that the provisions of the agreement between the parties (the IDSL, the SCA, and the ESMA) exclude the right of appeal on questions of law, pursuant to s. 45(2) of the Act. HAL cannot appeal the arbitrators’ decision, and the application must be dismissed. 2. HAL’s appeal would not be permitted by s. 45(2) in any event, because it raises question of mixed law and fact, rather than question of law. [39] My finding on the first issue is dispositive of the application, but even if my conclusion in that respect had been different, would still not have granted HAL’s application for leave. That is because the issues upon which HAL seeks leave to appeal are questions of mixed fact and law, not pure questions of law. [40] Section 45(2) provides that leave to appeal an arbitrators’ decision may be granted only on questions of law. It does not permit appeals on questions of fact, or questions of mixed fact and law. This distinction is one of significance. The scope of appeals permitted by arbitration legislation is narrow, because arbitration is intended to be complete alternate dispute resolution mechanism, rather than simply an extra layer of litigation: Student Assn. of the British Columbia Institute of Technology British Columbia Institute of Technology, 2000 BCCA 496 (CanLII), [2000] 10 WWR 256; Boxer Capital Corp. JEL Investments Ltd., 2015 BCCA 24 (CanLII), [2015] WWR 481 [Boxer Capital]. [41] Questions of law are questions about what the correct legal test is. Factual questions are questions about what actually took place between the parties. Mixed questions are questions about whether the facts satisfy the legal test. In other words, they involve applying legal standard to set of facts: Teal Cedar Products Ltd. British Columbia, 2017 SCC 32 (CanLII) at para 43 [Teal]; Canada (Director of Investigation and Research) Southam Inc., 1997 CanLII 385 (SCC), [1997] [42] Questions of contractual interpretation are almost always regarded as questions of mixed fact and law: Boxer Capital at para 9. In Sattva Capital Corp. Creston Moly Corp., 2014 SCC 53 (CanLII), [2014] SCR 633 [Sattva] Justice Rothstein made this point very clearly. He wrote: 50 With respect for the contrary view, am of the opinion that the historical approach should be abandoned. Contractual interpretation involves issues of mixed fact and law as it is an exercise in which the principles of contractual interpretation are applied to the words of the written contract, considered in light of the factual matrix. 51 The purpose of the distinction between questions of law and those of mixed fact and law further supports this conclusion. One central purpose of drawing distinction between questions of law and those of mixed fact and law is to limit the intervention of appellate courts to cases where the results can be expected to have an impact beyond the parties to the particular dispute. It reflects the role of courts of appeal in ensuring the consistency of the law, rather than in providing new forum for parties to continue their private litigation. For this reason, Southam Inc. identified the degree of generality (or “precedential value”) as the key difference between question of law and question of mixed fact and law. The more narrow the rule, the less useful will be the intervention of the court of appeal: If court were to decide that driving at certain speed on certain road under certain conditions was negligent, its decision would not have any great value as precedent. In short, as the level of generality of the challenged proposition approaches utter particularity, the matter approaches pure application, and hence draws nigh to being an unqualified question of mixed law and fact. See R. P. Kerans, Standards of Review Employed by Appellate Courts (1994), at pp. 103-108. Of course, it is not easy to say precisely where the line should be drawn; though in most cases it should be sufficiently clear whether the dispute is over general proposition that might qualify as principle of law or over very particular set of circumstances that is not apt to be of much interest to judges and lawyers in the future. [para. 37] 52 Similarly, this Court in Housen found that deference to fact-finders promoted the goals of limiting the number, length, and cost of appeals, and of promoting the autonomy and integrity of trial proceedings (paras. 16-17). These principles also weigh in favour of deference to first instance decision-makers on points of contractual interpretation. The legal obligations arising from contract are, in most cases, limited to the interest of the particular parties. Given that our legal system leaves broad scope to tribunals of first instance to resolve issues of limited application, this supports treating contractual interpretation as question of mixed fact and law. 53 Nonetheless, it may be possible to identify an extricable question of law from within what was initially characterized as question of mixed fact and law (Housen, at paras. 31 and 34-35). Legal errors made in the course of contractual interpretation include “the application of an incorrect principle, the failure to consider required element of legal test, or the failure to consider relevant factor” (King, at para. 21). Moreover, there is no question that many other issues in contract law do engage substantive rules of law: the requirements for the formation of the contract, the capacity of the parties, the requirement that certain contracts be evidenced in writing, and so on. 54 However, courts should be cautious in identifying extricable questions of law in disputes over contractual interpretation. Given the statutory requirement to identify question of law in leave application pursuant to s. 31(2) of the AA, the applicant for leave and its counsel will seek to frame any alleged errors as questions of law. The legislature has sought to restrict such appeals, however, and courts must be careful to ensure that the proposed ground of appeal has been properly characterized. The warning expressed in Housen to exercise caution in attempting to extricate question of law is relevant here: Appellate courts must be cautious, however, in finding that trial judge erred in law in his or her determination of negligence, as it is often difficult to extricate the legal questions from the factual. It is for this reason that these matters are referred to as questions of “mixed law and fact”. Where the legal principle is not readily extricable, then the matter is one of “mixed law and fact” .... [para. 36] [43] However, it is important to note that the mere fact that an arbitrators’ decision dealt with matter of contractual interpretation does not inevitably mean that the issues involved are questions of mixed fact and law, rather than questions of law. As Justice Gascon noted, in Teal, while questions involving application of facts are not always mixed questions, the court must be careful to maintain the proper distinction. At paras. 44-47 he wrote: 44 That said, while the application of legal test to set of facts is mixed question, if, in the course of that application, the underlying legal test may have been altered, then legal question arises. For example, if party alleges that judge (or arbitrator) while applying legal test failed to consider required element of that test, that party alleges that the judge (or arbitrator), in effect, deleted that element from the test and thus altered the legal test. As the Court explained in Southam, at para. ... if decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied law that required consideration of only A, B, and C. If the correct test requires him or her to consider as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law. Such an allegation ultimately challenges whether the judge (or arbitrator) relied on the correct legal test, thus raising question of law (Sattva, at para. 53; Housen, at paras. 31 and 34-35). Accordingly, such legal question, if alleged in the context of dispute under the Arbitration Act, and assuming the other jurisdictional requirements of that Act are met, is open to appellate review. These “extricable questions of law” are better understood as covert form of legal question where judge’s (or arbitrator’s) legal test is implicit to their application of the test rather than explicit in their description of the test than as fourth and distinct category of questions. 45 Courts should, however, exercise caution in identifying extricable questions of law because mixed questions, by definition, involve aspects of law. The motivations for counsel to strategically frame mixed question as legal question for example, to gain jurisdiction in appeals from arbitration awards or favourable standard of review in appeals from civil litigation judgments are transparent (Sattva, at para. 54; Southam, at para. 36). narrow scope for extricable questions of law is consistent with finality in commercial arbitration and, more broadly, with deference to factual findings. Courts must be vigilant in distinguishing between party alleging that legal test may have been altered in the course of its application (an extricable question of law; Sattva, at para. 53), and party alleging that legal test, which was unaltered, should have, when applied, resulted in different outcome (a mixed question). 46 From this standpoint, the characterization of question on review as mixed question rather than as legal question has vastly different consequences in appeals from arbitration awards and civil litigation judgments. The identification of mixed question when appealing an arbitration award defeats court’s appellate review jurisdiction (Arbitration Act, s. 31; Sattva, at para. 104). In contrast, the identification of mixed question when appealing civil litigation judgment merely raises the standard of review (Housen, at para. 36). 47 Given these principles, question of statutory interpretation is normally characterized as legal question. In contrast, identifying question, broadly, as one of contractual interpretation does not necessarily resolve the nature of the question at issue. Contractual interpretation involves factual, legal, and mixed questions. In consequence, characterizing the nature of the specific question before the court requires delicate consideration of the narrow issue actually in dispute. In general, though, as the Court recently explained in Sattva, contractual interpretation remains mixed question, not legal question, as it involves applying contractual law (principles of contract law) to contractual facts (the contract itself and its factual matrix): para. 50. [44] In this case, the questions that HAL seeks to raise on appeal are, at best, questions of mixed fact and law. While HAL alleges, among other things, that the majority’s decision failed to properly apply the ratio of the Supreme Court of Canada in Sattva, each of the proposed grounds of appeal cited deal with how the majority of the arbitration panel applied the legal standard set out in Sattva to the facts they found. The errors that HAL alleges were made by the majority do not relate to the application of an incorrect principle, failure to consider required element of legal test, or failure to consider relevant factors. Instead, HAL’s proposed grounds of appeal relate to the way in which the majority weighed certain factors, and applied the legal standard. Such proposed grounds of appeal, according to the leading authorities, are thus mixed questions, not pure questions of law. [45] This also applies to HAL’s argument that the majority erred in law by failing to consider the effect of the termination clause of the contract. In my view, the majority’s language is clear, throughout its reasons, that it considered the whole of the contract. This must be taken as including the termination clause. Furthermore, the issue of the termination clause was not relevant to the central issue of whether SecurTek was obligated by the IDSL or MIDSL to purchase certain number of licences from HAL. [46] Accordingly, HAL’s proposed grounds of appeal do not raise a pure issue of law. Even if I had found that HAL and SecurTek had not contracted out of s. 45(2) of the Act, HAL’s application for leave to appeal would have to be dismissed on that basis. CONCLUSION [47] For the foregoing reasons, HAL’s application is dismissed. SecurTek is entitled to the costs of this application. J. J.D. KALMAKOFF

HELD: The application for leave to appeal was dismissed. The court found that a term permitting an appeal from an arbitrator’s decision on an error of law did not fall into the category of the obvious and was not the same as an implied term, such as that of good workmanship in contracts for repair. The contractual language used by the parties was clear that they intended to resolve disputes by final and binding arbitration. Even if it had found that the parties had not contracted out of s. 45(2) of the Act, the application for leave would have been dismissed because the proposed grounds of appeal did not raise a pure issue of law.

8_2017skqb249.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2005 SKCA 89 Date: 20050624 Between: Docket: 868 Leith Robert Stewart Dewar (Respondent) Appellant and Deborah Jane Ruskin (Petitioner) Respondent Coram: Cameron, Vancise, and Lane JJ.A. Counsel: Hal Wellsch for the Appellant Jeffrey Brick for the Respondent Appeal: From: 2003 SKQB 514 (CanLII) Heard: November 30, 2004 Disposition: Appeal Allowed Written Reasons: June 24, 2005 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Mr. Justice Vancise In Dissent: The Honourable Mr. Justice Lane CAMERON J.A. [1] This appeal stems from proceedings under The Family Property Act, S.S.1997, c. F- 6.3, initiated by Deborah Ruskin, a nurse, against Leith Dewar, a doctor. The two had lived together for several years. She sought judgment distributing their property or its value equally between them. The property included house in Vancouver, which he had acquired some years earlier with the financial assistance of his parents, first in the form of gift from his mother in the amount of $125,000 and then in the form of loans from his parents in the amount of $100,000 each. [2] He contended the value of the house was exempt from distribution because he had acquired it before the commencement of the spousal relationship between the parties. Alternatively, he contended the gift and loans served to reduce the value available for distribution. [3] The trial judge disagreed. He held that Dr. Dewar had acquired the house after the commencement of the spousal relationship and then went to hold that Ms. Ruskin was entitled to an equal share of its value with no reduction owing to the gift or the loans. With that, Dr. Dewar appealed, saying the trial judge had erred in both respects. [4] Whether the trial judge erred in either respect is best considered in light of the material facts, the relevant provisions of The Family Property Act, and the distribution made by the trial judge. That will serve to identify the issues and set the stage for their analysis. I. The Material Facts [5] The parties, both of whom then resided in Vancouver, met in the summer of 1991 and began dating. He was twenty-nine-year-old medical graduate living in rented condominium and training to become surgeon. She was twenty-eight-year-old nurse living in an apartment and employed in one of the hospitals. Each was earning about $40,000 year. [6] few months later, in May of 1992, she left her apartment and began residing in his condominium. He was hospitalized at the time undergoing prolonged treatment for life-threatening illness, and she wanted to be nearer him. On leaving hospital later, he stayed with his parents for month while recuperating and then went back to the condominium, where the two began living together. They began sharing household expenses, sleeping with one another, having sexual relations, travelling and socializing together, visiting friends and family in common, and so on. [7] Some months afterwards his parents sold their farm in Langley, and in late 1993 or early 1994 his mother gave him $125,000 to be used to buy house. She did likewise for her only other child. His mother testified to giving the money to her son for his benefit alone, saying he and Ms. Ruskin were “boyfriend and girlfriend”, not “a couple,” for they had not married and, as far as she knew, had no plans to marry. [8] Then, in September of 1994, friend and colleague of his informed him that he and his wife were leaving Vancouver and would like to sell their home, small two bedroom bungalow located at 3996 West 31st St. The house had been appraised at $430,000. Dr. Dewar decided to buy it, and in doing so he: applied the $125,000 he had received from his mother toward the purchase price; borrowed $130,000 from the Hong Kong Shanghai Bank of Canada, giving it first mortgage on the house to secure the loan; and borrowed an additional $100,000 from each of his parents, applying $175,000 to the purchase price and the remainder to improvements including the construction of garage. The loans were made payable on demand, without interest, and were secured by mortgages in favour of his parents. [9] Ms. Ruskin was aware generally of the purchase of the house, and knew Dr. Dewar had received financial assistance from his parents, but she was not involved in the purchase and knew little of the details. [10] The two of them moved into the house shortly afterwards, in October of 1994. She paid him $600 to $700 per month toward the expenses associated with the house, as she had been doing when they were living together in his condominium. [11] Just under two years later, in the summer of 1996, as Dr. Dewar was about to complete his training in cardio-thoracic surgery, he was offered post in Regina. He accepted and then bought house in Regina located at 2231 Hanover Crescent. He bought it for $153,000. He paid $30,000 down and borrowed the remainder from the Hong Kong Shanghai Bank of Canada, granting it mortgage on the house to secure the loan. [12] As before, Ms. Ruskin was generally aware of the transaction but was not involved in it, financially or otherwise. It seems there was some doubt about whether she would accompany him to Regina, though that is not entirely clear. In any event she did accompany him and the two of them moved into the Regina house in October of 1996. He took up his medical practice, and she enrolled in the College of Arts at the University of Regina. [13] little over three years later, in January 2000, they separated. He remained in the home, and she moved to place of her own. [14] Then, on March 13, 2000 she applied for distribution of their property under The Family Property Act and for maintenance under The Family Maintenance Act, 1997, S.S.1997, c. F-6.2. In the months that followed she completed her studies at the University of Regina, receiving Bachelor of Arts degree, and then left for Vancouver where she rented home and resumed her nursing career. [15] At trial she sought to have the property owned by each of the parties, or its value, distributed equally between them. Inasmuch as this included the value of the Vancouver house, he took the position, as noted earlier, that its value was wholly exempt from distribution because he had acquired the house before the commencement of the spousal relationship, or was partially exempt because the gift he had received from his mother had found its way into the purchase of the house. He also took the position the loans he obtained from his parents when purchasing the house fell to be offset against the value of the property. II. The Relevant Provisions of the Act [16] Ms. Ruskin’s application under The Family Property Act amounted to an application for an order distributing the “family property” or its value equally between the parties. Generally speaking, family property is defined in subsection 2(1) of the Act to mean all property of whatever kind that is owned by one or both spouses as of the date of application under the Act. [17] Having regard for this, her application extended to the house in Vancouver, for Dr. Dewar still owned the house on March 13, 2000, the date of her application. His father was apparently looking after the property and overseeing its rental on his behalf, though that is neither here nor there. [18] Now, insofar as her application extended to this property, she was unable in principle to claim any right, title, or interest in the house itself. This is so because the house constituted an immoveable situated outside Saskatchewan: Hlynski v. Hlynski (1999), 1999 CanLII 12299 (SK CA), 176 D. L.R. (4th) 132 (Sask. C.A.). However, she was able in principle to claim half the value of the house pursuant to section 21 of the Act: Hlynski v. Hlynski. [19] Section 21, beginning with subsection 21(1), directs that family property or its value be distributed equally. This is predicated on the presumption, found in section 20, that spouses contribute equally in one form or another to the responsibilities of their partnership and are therefore entitled on its breakdown to share equally in the tangible fruits of the partnership, namely the family property or is value. This is so irrespective of which of the spouses actually owns this or that asset. But the entitlement to an equal share is subject to certain exceptions, equitable considerations, and exemptions. [20] The equitable considerations to which this entitlement is subject are referred to in subsection 21(2) and enumerated in subsection 21(3). Subsection 21(2) empowers the court to order an unequal distribution if satisfied, having regard for the equitable considerations mentioned in subsection 21(3), that equal distribution would be unfair or inequitable. [21] Among the equitable considerations mentioned in section 21(3) is “the value of family property situated outside Saskatchewan.” This is found in clause 21(3)(p) and allows the court to give one spouse larger share of the property or its value situated within Saskatchewan if the other owns property situated outside Saskatchewan that is not available for distribution on order of Saskatchewan court. In aid of this and other provisions of the Act, subsection 26(3) empowers the court to order payment by one spouse to the other of sum equivalent to the other’s interest: Hlynski v. Hlynski. [22] This, then, was the statutory foundation for Ms. Ruskin’s claim to half the value of the Vancouver property. To the extent her claim was subject to the equitable considerations mentioned in the Act, number of them came into play besides that having to do with the value of family property situated outside Saskatchewan as mentioned in clause 21(3)(p). And they served, potentially, to defeat or reduce her claim. These included the equitable considerations mentioned in clauses 21(3)(e), (n) and (o): (e) the contribution, whether financial or in some other form, made directly or indirectly by third party on behalf of spouse to the acquisition, disposition, operation, management or use of the family property; (n) interests of third parties in the family property; (o) any debts or liabilities of spouse, including debts paid during the course of the spousal relationship. [23] Notionally, this is where Dr. Dewar’s position regarding the loans he obtained from his parents to enable him to purchase the Vancouver property, and the mortgages in favour of his parents, came to rest. [24] Then there are the exemptions to which the entitlement to an equal share is also subject. These are found in section 23 of the Act. Among them are those found in subsections 23(1)(a) and (c), which exempt the fair market value, at the commencement of the spousal relationship, of family property (other than the family home or household goods) where the property is: (a) acquired before the commencement of the spousal relationship by spouse by gift from third party, unless it can be shown that the gift was conferred with the intention of benefiting both spouses…; or (c) owned by spouse before the commencement of the spousal relationship. This is modified by subsection 23(2), which provides as follows: 23(2) Subject to subsection (4), property acquired as result of an exchange of property mentioned in subsection (1) is exempt from distribution pursuant to this Part to the extent of the fair market value of the original property mentioned in subsection (1) at the commencement of the spousal relationship. [25] In principle, Dr. Dewar’s contention that the value of the Vancouver property was exempt from distribution in whole or in part came to rest on these provisions of section 23. III. The Distribution [26] The trial judge identified the family property and its value available for distribution under the Act in accordance with the following table: In the possession of Deborah In the possession of Leith 2231 Hanover Crescent, Regina $95,069.45 (in trust) $40,000.00 Household Effects/Art/Jewellery $55,000.00 2000 Ford Excursion $55,000.00 RRSP (after-tax value) $66,500.00 Savings/Cash $5,000.00 3996 West 31st St., Vancouver $427,000.00 Future Shop debt ($2,000.00) MasterCard ($7,463.23) Hong Kong Bank B.C. ($66,000.00) Hong Kong Bank Sask. ($76,000.00) Total Property $32,150.63 $741,569.45 [27] Having decided to distribute the property or its net value equally between the parties, the trial judge noted that in consequence Ms. Ruskin’s distributive share amounted to $386,860.04. Then, taking account of the property and its value in the possession of each of the parties, he ordered Dr. Dewar to pay her an equalization payment of $354,709.41. [28] As for the Vancouver property, the trial judge decided that its value fell to be taken into account without any exemption and fell to be distributed equally without allowance for any equitable consideration touching the loans in question. He explained this, saying ((2003), 2003 SKQB 514 (CanLII), 243 Sask. R. 126): [56] With respect to the Vancouver home, the respondent advanced the claim for an exemption on the basis it was owned prior to commencement of the spousal relationship. As it has been determined that the commencement of the spousal relationship is late June 1994 and the house was purchased in September 1994, there can be no claim for an exemption on this basis. [57] The respondent also claims that the debt to his parents associated with the Vancouver home should be taken into account. Each of his parents is said to have lent the respondent $100,000.00 in September 1994. The loans were later secured by mortgages signed by the respondent March 15, 1995. The mortgages are payable on demand. There has been no demand and no payments made. Collection of the loans appears to be statute barred by the Limitation Act, R.S.B.C. 1996, c. 266, ss. 3(5) and (6) after six years. Counsel for the respondent suggested the respondent had "confirmed" the debt or his obligation to repay on various occasions. However s. 5(5) of the Limitation Act requires any confirmation to be in writing and nothing has been produced. Statute barred debts are not considered in dividing family property. Russell v. Russell, 1999 CanLII 12313 (SK CA), [2000] W.W.R. 619; (1999), 180 Sask.R. 196 (C.A.) at paras. 113 and 114 (Sask.R.). [58] Apart from being statute barred, would not consider the "loans" from Leith's parents in the division of family property as it is far from clear the respondent will ever be required to repay them. It has now been approximately nine years. While Leith's income when he purchased the Vancouver home was perhaps unexceptional, he has had substantial income for the last number of years and made no payments…. [29] The appeal raises the following questions: 1. Did the trial judge err in finding that the parties had become “spouses” within the meaning of the Act in late June of 1994 and, therefore, err in concluding that the value of the Vancouver property was not exempt from distribution because the property had been acquired after commencement of the spousal relationship, not before? 2. Did the trial judge, in awarding the respondent an equal share of the value of the Vancouver property, err by: (a) failing to give effect to the gift of $125,000 the appellant had received from his mother for the purpose of assisting him with the purchase of house; and (b) declining to take into account the loans of $100,000 the appellant had obtained from each of his parents for the purpose of purchasing the Vancouver property? 1. The First Question [30] For the reasons that follow, am of the opinion the trial judge cannot be said to have erred in concluding that the appellant had acquired the Vancouver property after, not before, the commencement of the spousal relationship. [31] The term “spouse” is defined in section of the Act. The definition extends to persons who have cohabited as spouses for continuous period of at least two years. With this in mind, and having regard for the evidence before him, the trial judge found that as of late June 1994 the parties had cohabited with one another as spouses continuously for period of two years. [32] This reduces to finding of fact, and in my judgment it is sufficiently supported by the evidence as to preclude interference on appeal: H.L. v. Canada (Attorney General), 2005 SCC 25 (CanLII); C.P.C. (6th) 199. The significance of this is that the fact as found is sufficient in law to render the relationship between the parties spousal relationship, effective as of late June 1994, as contemplated by the definition of “spouse” found in section of the Act. [33] This is why say the trial judge cannot be said to have erred in concluding that the appellant, who acquired the Vancouver property in October of 1994, acquired it after the commencement of the spousal relationship, rather than before. It follows that the value of the property did not qualify for exemption under section 23(1)(a) of the Act. 2. The Second Question [34] This is more complex question, one that raises several issues [35] To begin with, the trial judge distributed the value of the Vancouver property on the premise its distribution was governed by sections 21 and 23 of the Act. The respondent, faced on appeal with the possibility the judge may have misapplied these sections, contended the matter was governed not by sections 21 and 23 of the Act but by section 22. [36] Section 22 concerns the distribution of “family home” and household goods. It directs that family home or its value be distributed equally (subject to any tax liability, encumbrance, debt, and so on), unless it would be unfair or inequitable to do so having regard only to any extraordinary circumstance or, where children are involved, to whom their custody is entrusted. The significance of this is that the equitable considerations mentioned in section 21, and the exemptions provided for by section 23, do not as such apply to the family home. The custody of children aside, it takes an extraordinary circumstance to warrant unequal distribution of the family home. [37] In relevant part, the term “family home” is defined as follows: 2(1) In this Act: “family home” means…property (b) that is or has been occupied by one or both spouses as the family home or that is mutually intended by the spouses to be occupied by one or both of them as the family home. [38] The definition twice speaks to the family home, rather suggesting an intention to limit the application of section 22 to one such home. This is reinforced by section 22(3) of the Act: 22(3) Where there is more than one family home, the court may designate to which family home this section applies, and any remaining family home is to be distributed in accordance with section 21. [39] In effect, this section empowers the court to designate to which family home section 22 applies, and then goes on to direct that any remaining family home be distributed in accordance with section 21. This Court considered the equivalent of this section in Mitchell v. Mitchell (1992), 1992 CanLII 8234 (SK CA), 41 R.F.L. (3d) 220 (Sask. C.A.).[1] The Court held that the section “specifically contemplates that the parties will have no more than one matrimonial home for the purposes of distribution”: Vancise J.A. on behalf of the Court at p. 231. [40] With this in mind, it might be noted that Ms. Ruskin’s application expressly identified the house in Regina as the “matrimonial home,” now known as the “family home.” Her application did not suggest that there were two such homes, the other being the Vancouver house, or that the value of the Vancouver house fell to be taken into account as though the house constituted the “matrimonial home”, or the “family home.” Understandably, she treated the Regina house as the matrimonial or family home. [41] Nor did the trial judge purport to designate the Vancouver house as the family home in exercise of the power afforded the court by subsection 22(3), and with view to distributing its value under section 22 instead of sections 21 and 23. Indeed, he addressed the distribution of the value of the house along the lines, first, of subsection 23(1)(c), exempting the value of property acquired before the commencement of spousal relationship, and second, of clause 21(3)(o), creating the equitable consideration regarding debts. [42] Nor, it might be added, did the circumstances lend themselves to designating the Vancouver property as the family home. On what basis would one designate the Vancouver house, rather the Regina house, as the family home? And for what purpose, if not that alone of artificially eliminating from play the equitable considerations mentioned in section 21 and the exemptions provided for by section 23? [43] Hence, disagree with the point that, inasmuch as the value of the Vancouver property featured in the distribution in question, the matter was governed by section 22 rather than sections 21 and 23 of the Act. [44] With that, turn to the trial judge’s treatment of the Vancouver property, having regard for the equitable considerations mentioned in section 21 and the exemptions provided for by section 23. [45] As is customary, the trial judge turned first to the exemptions provided for by section 23. More specifically, he turned to subsection 23(1)(c), which exempts from distribution the fair market value, at the commencement of the spousal relationship, of family property and its value (other than the family home and household goods), where the property is “owned by spouse before the commencement of the spousal relationship.” With this in mind he held that the value of the Vancouver property was not exempt from distribution because the property was acquired after the commencement of the spousal relationship, not before. That relationship, he found, had begun in late June of 1994, whereas the property was acquired by the appellant in September of 1994. [46] There the matter ended, as though this was the only exemption potentially available to the appellant on the facts of the case. That was not necessarily so, however, not in light of the gift the appellant had received from his mother, and that brings me to the first branch of the question at hand: (a) Did the trial judge err in failing to give effect to the gift of $125,000 the appellant had received from his mother for the purpose of assisting him to buy house? [47] In my respectful opinion, the answer is “yes.” am of view the $125,000 the appellant received from his mother gave rise to an exemption under section 23 because the $125,000 was brought into the spousal relationship by the appellant and later used by him in the purchase of the Vancouver property. This was overlooked in the Court of Queen’s Bench. [48] My view is founded on the combined effect of subsections 23(1)(a) and 23(2). Recall, subsection 23(1)(a) exempts from distribution the value, at the commencement of the spousal relationship, of family property or its value (other than the family home and household goods), where the property is: (a) acquired before the commencement of the spousal relationship by spouse by gift from third party, unless it can be shown that the gift was conferred with the intention of benefiting both spouses…. Subsection 23(2) goes on to state: 23(2) Subject to subsection (4), property acquired as result of an exchange of property mentioned in subsection (1) is exempt from distribution pursuant to this Part to the extent of the fair market value of the original property mentioned in subsection (1) at the commencement of the spousal relationship. [49] Subsection 23(2) serves to extend the reach of the exemption provided for by subsection 23(1)(a). It does so by allowing the value of property brought into spousal relationship, though that property no longer exists, to be traced to property acquired during the relationship, provided the latter is in existence on the date of application under the Act: Deyell v. Deyell (1990), 1991 CanLII 2761 (SK CA), 90 Sask R. 81(Sask.C.A.). (See, too, Mitchell v. Mitchell, supra, and Vilcu v. Grams (1999), 1999 CanLII 12231 (SK CA), 172 Sask. R. 201(Sask.C.A.)). [50] Turning from the content of these provisions to their application, they fall to be applied on the two-stage, step by step, approach suggested in Deyell v. Deyell and applied in each of Mitchell v. Mitchell and Benson v. Benson (1994), 1994 CanLII 4554 (SK CA), 120 Sask.R. 17 (Sask.C.A.). As Benson says at p. 31: [1] The first stage is concerned with the conditions of ss. 23(1) and (2) and entails enquiry into whether those conditions have been met. The party claiming the exemption bears the burden of establishing that they have in fact been met. If that party fails to do so, that is the end of the matter. If, on the other hand, he or she succeeds in doing so, there then arises in that party prima facie entitlement to the exemption and the matter shifts to the second stage. The second stage, if reached, is concerned with the provisions of ss. 23(4) and (5) and calls for consideration of whether the exemption ought to be disallowed. The party resisting the exemption bears the burden of establishing to the satisfaction of the court that it would be unfair and inequitable to allow the exemption in whole or in part having regard for the matters mentioned in ss. 23(5) and 21(2)(a) to (p). If that party fails to do so, the exemption must stand. Only if he or she succeeds in thus satisfying the court may the exemption be disallowed in whole or in part as the matters bearing upon the issue suggest. [52] As thus noted, the second stage entails application of subsections 23(4) and (5), which provide as follows: (4) Where the court is satisfied that to exempt property from distribution would be unfair or inequitable, the court may make any order that it considers fair and equitable with respect to the family property mentioned in this section. (5) In making an order pursuant to this section, the court shall have regard to the following: (a) any of the matters mentioned in clauses 21(3)(a) to (p); (b) contributions in any form made by the spouses to their relationship, children or property prior to the commencement of their spousal relationship; (c) contribution, whether financial or in any other form, made by spouse directly or indirectly to the acquisition, disposition, preservation, maintenance, improvement, operation, management or use of property mentioned in this section; (d) the amount of other property available for distribution…. [53] Turning to the case at hand with this two-stage approach in mind, and beginning with the first, there are number of facts that merit emphasis, facts that were amply established by the appellant at trial. First, he received the $125,000 from his mother before the spousal relationship commenced. Second, he still had that amount on hand when the relationship commenced. Third, he used the $125,000 as down payment on the purchase of the Vancouver house shortly after the relationship commenced. [54] I am of the view that by establishing these facts the appellant established the requisite conditions for the grant of an exemption of the value of the Vancouver property to the extent of the $125,000: Deyell v. Deyell and Vilcu v. Grams. As this Court observed in Vilcu v. Grams, property brought into relationship can be converted into other forms during the relationship and still qualify for exemption in relation to its value at the time the relationship commenced. For example, the Court noted that bank account brought into marriage can retain its exempt status to the extent of its value at the time of marriage despite the fact that at the time of the application it exists in the form of term deposit or an RRSP: Parker v. Parker (1987), R.F.L. (3d) 147 (Sask. Q.B.). The same may be said of bank account that at the time of application exists in the form of real estate, other than family home. Hence the appellant is prima facie entitled to the exemption in issue. [55] Had the respondent shown that the $125,000 was given to the appellant for the benefit both parties would disallow the exemption in light of the content of subsection 23(1)(a). But that is not the case. The only evidence on the point is that of the mother who said she intended the gift for the sole benefit of her son, the appellant. The trial judge did not make any finding adverse to the mother’s credibility, and to me her explanation rings true. The gift was made before the commencement of the spousal relationship between the parties and, as the mother said, their relationship was not that of “couple” but merely that of “boyfriend and girlfriend.” understand, and have no difficulty accepting this explanation. [56] That serves to advance the matter to the second stage, having to do with whether, in light of the considerations enumerated in subsection 23(5), including those mentioned in clauses 21(3)(a) to (p), it would be unfair and inequitable to allow the exemption in whole or in part. [57] With clauses 21(3)(a) to (p) in mind, many of which are inapplicable in the circumstances, can find little to suggest the appellant’s prima facie entitlement to the exemption should be disallowed in whole or in part. Indeed those that apply point in the opposite direction. This was spousal relationship of relatively short duration, having lasted for only about five and half years, and the Vancouver property was largely acquired and improved by means of the financial contributions made by the appellant’s parents on his behalf. Added to that is the fact the parties occupied the property for only two years of their spousal relationship. Otherwise it served as rental property apparently looked after by the appellant’s father. might add that it is not as though we are talking about exempting from distribution the whole of the value of the property. Were that so, it might change the complexion of the matter, but the property was valued at $427,000 and we are talking about exempting only $125,000. The remaining value is $302,000. [58] Turning to the considerations enumerated in subsection 23(5), am also of the view there is little in these considerations to suggest the appellant’s prima facie entitlement to the exemption should be disallowed in whole or in part. can see nothing in the contributions of the parties made prior to the commencement of their spousal relationship that has any material bearing on the exemption. Nor can see much in the contributions of the respondent to the acquisition, improvement, or management of the Vancouver property to suggest that allowing the exemption would be unfair to her or inequitable. note, too, that the amount of other property available for distribution is substantial, especially in light of the relatively short duration of the spousal relationship. [59] This is not to overlook or denigrate the presumed contribution arising out of the spousal relationship and the respondent’s resulting entitlement. While this is expressly subject to exemption under the Act, it is only so in the absence of unfairness or inequity. That raises the question of whether it would be fair for the exemption to prevail over her presumed contribution to the build-up of the equity in the house over the course of the spousal relationship. Aside from this, however, do not see any other form of unfairness or inequity in giving effect to the exemption. [60] It follows that would allow the exemption, subject to such adjustment as may be required having regard for her contribution to the build-up of the equity in the house, matter shall deal with in conclusion. Subject to that, would exempt from distribution the value of the Vancouver property to the extent of $125,000. (b) Did the trial judge err in declining to take into account the loans of $100,000 the appellant had received from each of his parents for the purpose of purchasing the Vancouver property? [61] In taking up this part of the question should like at the outset to make number of preliminary observations for the purpose of clarifying the subject-matter and illustrating the approach which the trial judge might have taken, in contradistinction to that which he actually took. [62] First, there was no suggestion the loans, made for the purpose of enabling the appellant to acquire the Vancouver property, were anything but wholly legitimate transactions. They were free of the expedient, sham-like marks that occasionally accompany intra-family transactions of this sort when it comes to contested division of property between spouses. [63] Second, each of the loans was secured by legal mortgage on the property, mortgages drawn by the Vancouver law firm of Ladner Downs, who oversaw their execution. Thus the loans constituted mortgage debts, so to speak, not simple contract debts (or debts arising from promissory notes). [64] Third, action on the mortgages, even if statute barred at some later date as suggested by the trial judge, was not barred on the date of the respondent’s application under The Family Property Act. The mortgages were made on March 15, 1995; the application was launched on March 13, 2000; and the limitation periods to which the trial judge referred bar commencement of action after six years from the date the cause of action arose. [65] Fourth, the family property and its value subject to distribution under the Act was agreed upon by the parties, with the value being agreed upon as of the date of application, rather than adjudication, for no adjudication in this respect proved necessary and adjudication came considerably later. (The trial took place from September 16 to 18, 2002 and judgment came down on December 4, 2003). More specifically, the market value of the Vancouver property, alleged by the respondent on the date of application to be $450,000 was later agreed to be $427,000. [66] Fifth, while it was not open to the judge to distribute the Vancouver property in specie, for it constituted an immoveable situated outside Saskatchewan, it was open to him to distribute the value of the property equally between the parties, which is to say the net value of the property as at the date of application. As of that date, the net value, allowing for the mortgage debts payable to the appellant’s parents, was as follows: Market value: 427,000 Less: (i) first mortgage, Hong Kong Bank 67,000 (ii) second mortgage, the Dewars $­­­ 200,000 $267,000 267,000 Net value: 160,000 [67] Rather than approach the distributable value of the Vancouver property along these lines, treating the matter at hand as an issue of net valuation as of the date of application, the trial judge approached it along the lines he mentioned, treating the matter as an equitable consideration issue as of the date of adjudication. Thus he declined to take the loans into account having regard for the equitable consideration mentioned in clause 21(3)(o): (o) any debts or liabilities of spouse, including debts paid during the course of the spousal relationship. [68] In effect, the trial judge declined to apply this clause for two reasons: (i) that “collection of the loans appears to be statute barred by the Limitation Act, R.S.B.C. 1996, c. 266, ss. 3(5) and (6),” noting that statute barred debts are not considered in dividing family property: Russell v. Russell, [2001] W.W.R. 619; and (ii) that it was “far from clear the [appellant] will ever be required to repay [the loans].” shall consider these in turn, (i) Collection of the loans and the Limitations Act [69] The limitation periods to which the trial judge referred, namely subsections 3(5)and (6) of the Limitation Act of British Columbia, provide that person may not bring an action (in relation to the specified subject matter) after the expiration of six years after the date on which the right to do arose. With this in mind the judge noted that the mortgages were payable on demand, and that no demand or payment had been made since they were granted on March 15, 1995, more than six years earlier. Thus, he was prompted to say, “collection of the loans appears to be statute barred.” [70] This statement strikes me as more in the nature of an observation on the appearance of the matter than finding. Certainly it is not conclusive finding. Did British Columbia law bar action by Mr. and Mrs. Dewar on the mortgage debts arising from the loans, as the respondent asserted, or did it not? That was the issue, though note in passing that the Dewars, whose interests were thus brought into question, were not joined as parties to the proceedings. [71] In fairness to the trial judge, he was given little to work with in determining the issue. What little he had did not allow for much more than commentary on the appearance of things. It fell to the respondent, having asserted that the debts were statute barred, to satisfy the judge this was so, but she did no more than produce copy of the Limitation Act of British Columbia. Assuming compliance with section 3(1) of The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16, this served to prove the content of the Limitation Act but was of no assistance when it came to interpreting that Act and applying it accordingly. [72] The frailties of such limited proof of foreign law—foreign law being matter of fact—are illustrated by Royal Trust Co. v. H.A. Roberts Group Ltd. (1995), 1995 CanLII 6094 (SK QB), 129 Sask. R. 161 (Q.B.), wherein Mr. Justice Baynton observed: Under common law, foreign law (which includes the law of another province) has to be plead and proven as fact: 12 C.E.D. (West 3rd), Evidence, at ss. 643 and 1201; Canada National Steamships Co. v. Watson, 1938 CanLII 183 (SCC), [1939] D.L.R. 273 at 276 (S.C.C.). Section 3(2) of The Saskatchewan Evidence Act, supra, does not fundamentally change this principle. It simply permits (but does not require) the court to take judicial notice of such foreign law. The section preserves the discretion of the court to require formal proof: R. v. Clarke (1980), 1980 CanLII 2156 (SK QB), Sask. R. 283 at 286-7 (Q.B.)…. It is important to note however that proof of the contents of statute is not necessarily proof of the law on certain issue in the foreign jurisdiction. Statutory provisions are interpreted by case law in the context of the laws of that province. In many instances specific statutory provision has been given meaning not readily apparent by reading of that statutory provision alone….Accordingly proof of the contents of statute is by no means the end of the matter. [p. 168] [73] With this in mind, and having regard for the fact the debts in issue were mortgage debts rather than simple contract debts (or debts arising out of promissory notes), it seems to me the case raised some rather complex questions in relation to the interpretation and application of the Limitation Act of British Columbia. For example, when did the right to commence action on the mortgages arise, including the right of action on the covenant to pay and the covenant to yield possession on default? Was it on the date the mortgages were made, or the date of demand, or the date of default? The question is complicated by the fact each of the mortgages, while payable on demand, contains clause assuring the mortgagor possession of the land in the absence of default and obliging the mortgagor to pay the mortgage monies within two months of written notice by the mortgagee demanding payment. [74] The point of all of this is twofold: First, do not think the trial judge found, as matter of fact, that British Columbia law barred action on the debts. Given what he said of the matter, coupled with what he had to work with, his was more of commentary on the appearance of things than conclusive finding. Second, do not think enough evidence was adduced to enable him to find that the debts were in fact statute barred, bearing in mind the complexity of the matter and the approach adopted by Mr. Justice Baynton in Royal Trust Co. v. H.A. Roberts Group Ltd. Indeed, am inclined to think this is why the trial judge limited himself to saying “collection of the loans appears to be statute barred…”. [75] Thus, am of the respectful opinion that the first of the trial judge’s reasons for declining to give effect to clauses 21(3)(o) is unsatisfactory. [76] With that, turn to the second of the reasons the loans were put aside. (ii) Repayment of the loans [77] With clause 21(3)(o) in mind, allowing for any “debts” of spouse to be taken into account in the distribution of family property or its value, the trial judge declined to give effect to the loans as debts of the appellant because it was “far from clear the [appellant] will ever be required to repay them.” [78] find it difficult to know just what to make of this statement. The issue was whether or not the appellant was indebted to his parents, as contemplated by clause 21(3)(o), as result of their having loaned him $200,000 to enable him to acquire the Vancouver property. Can the trial judge be said to have found, as matter of fact, that the appellant would not be required to repay the loans? If so, this amounts to finding of fact that the appellant’s parents would forgive the loans, thus relieving the appellant of having to repay them and disentitling him to have them considered as “debts’ within the contemplation of clause 21(3)(o). say “would forgive,” for the trial judge, in commenting on the prospect of the appellant having to repay the loans, spoke in terms of it being less than clear the appellant “will ever be required” to repay them, terms connoting not the past or present but the future. [79] Nor, in light of the evidence bearing on the issue, is it easy to treat the trial judge’s observation as amounting to finding of fact that the appellant’s parents had forgiven or would forgive the loans. He noted that the loans had been made some years earlier and that in the meantime the appellant had begun earning substantial income, his parents had not demanded payment, and he had made no payment. Even if one could infer from this and such other circumstantial evidence as was before the court that the loans had been or would be forgiven, an arguable proposition, both the appellant and his mother testified that the loans were expected to be repaid. [80] Asked about this at trial, the appellant said, “I expect to repay them,” adding that he had acknowledged his indebtedness to his parents and that they had acknowledged their expectation the money would be repaid. His mother testified that her husband, who she described as “the businessman, not me,” had instructed their lawyer in relation to the mortgages, and when asked if she expected the loans to be repaid she said, “I think so, yes.” [81] Now the trial judge did not make any adverse findings of credibility in relation to either witness. Nor he did he reject the testimony of either. should have thought he would have taken some such steps had he intended his remarks to amount to finding of fact that the loans had been or would be forgiven by the appellant’s parents. [82] So say, it is difficult to know just what to make of the rather ambiguous observation: “It is far from clear the [appellant] will ever be required to repay the [loans].” But this much is evident: The assessment of the issue was incomplete, if not in its findings of fact then in its application of the law. say this because if, as matter of fact, the appellant will not be required to repay the loans, then their forgiveness by his parents amounts, as matter of law, to contribution by them on his behalf to the acquisition of the property as contemplated by the equitable consideration mentioned in clause 21(3)(e): (e) the contribution, whether financial or in some other form, made directly or indirectly by third party on behalf of spouse to the acquisition, disposition, operation, management or use of the family property…. [83] The trial judge did not consider this. So, as say, his assessment was incomplete. In my judgment, the incompleteness, whether in fact or in law, constitutes error. say this with the greatest of respect for the trial judge, noting that he may not have appreciated this in light of the submissions made to him. had the distinct sense the issues were more clearly defined on appeal than at trial, which is not as it should have been, either in fairness to the parties or the trial judge. [84] The error of which speak occurred in the exercise of the discretionary power of the court in giving effect to the equitable considerations mentioned in subsection 21(3). That being so, the error serves to vitiate the trial judge’s exercise of discretion in declining to take the loans into account: Benson v. Benson, at para. [90]. What is required, in consequence, is reassessment of the matter, and it is this to which now turn. [85] To put the case for the respondent at its highest in this regard shall assume the trial judge found that the appellant will not be required to repay the loans, which is to say the loans had been or will be forgiven by his parents. That, then, calls for assessment of the loans in the light of clause 21(3)(e). [86] In my opinion the forgiveness of the loans amounts to financial contribution by each of the appellant’s parents on his behalf to the acquisition of the Vancouver property. That being so, the question is whether in the interests of fair and equitable distribution of the value of the property as between the parties the contributions made by his parents on his behalf should be deducted from the value subject to distribution. [87] In my view they should be deducted on application of clause 21(3)(e). Assuming the loans have been forgiven, they are to be taken as having been forgiven not as of the date of application but the date of adjudication. This is so because the trial judge’s assessment was based on the situation as it existed as of the date of adjudication. [88] He noted that approximately nine years had elapsed since the loans were advanced, and that in the meantime no repayment or demand for repayment had been made. True, approximately nine years had elapsed between the advance of the loans, in October of 1994, and the date of judgment, in December 2003. But between the date of the mortgages, March 15, 1995, and the date of application, March 13, 2000, only five years had intervened. Had the trial judge considered the shorter period (i.e. between the date of the mortgages and the date of application), it would have been much more difficult to conclude that the loans had been forgiven during this time. Given that the trial judge based his finding on the period up to the date of adjudication, and if he is to be taken as having found that the loans had been forgiven, he must have found that they were forgiven as of the date of adjudication not application. It is the act of forgiving the loans which amounts to contribution by the appellant’s parents under subsection 21(3)(e) and, in consequence, the contribution was made after the date of application. [89] That serves to underscore the fact that this contribution to the acquisition of the Vancouver property was made on behalf of the appellant, rather than on behalf of both parties. The appellant’s parents cannot be taken to have made such contribution on behalf of both parties after the two had separated and the respondent had commenced proceedings under The Family Property Act. The separation, might add, was bitter one. [90] On the whole of the circumstances, none of which I intend to repeat but including those concerning the Vancouver property and the length of the spousal relationship, I can see no tenable basis for not giving effect to clause 21(3)(e) and the contributions thus made by the appellant’s parents on his behalf to the acquisition of the property. [91] This is not to shut out the respondent entirely from sharing in the value of this property. To the extent the value is not exempt, and is not the product of the contributions of the appellant’s parents on his behalf, the respondent is entitled to share in the value. In other words she is entitled to share in such of the equity in the property as was otherwise acquired during the spousal relationship. [92] This means she is entitled to share in the build-up of the equity in consequence of the pay-down of the mortgage in favour of the Hong Kong Shanghai Bank of Canada. Over the course of the spousal relationship this mortgage debt was reduced from $130,000 at its inception to $66,000 at the date of application. The difference is $64,000, of which she is entitled to one half, or $32,000. [93] may say that see this as consistent with the purpose and terms of The Family Property Act. The purpose, expressed in section 20, recognizes that inherent in the spousal relationship there is joint contribution, financial and otherwise, by the spouses to the assumption of their responsibilities. Thus each is entitled to an equal distribution of family property or its value, subject to the exceptions, exemptions, and equitable considerations mentioned in the Act. In enacting this legislation, the Legislature went to considerable lengths to identify the exemptions and spell out the equitable considerations to which the entitlement to equal distribution is subject. When the conditions requisite to their application are satisfied these exemptions and equitable considerations fall to be acted upon, unless the court is satisfied it would be unfair or inequitable to do so in light of the relevant circumstances and the applicable statutory criteria. The statutory criteria serve, of course, to condition the nature and govern the extent of the discretion left to the court in determining if it would be unfair or inequitable to allow an exemption or to act on an equitable consideration. [94] In this instance, do not see any unfairness or inequity to the respondent in limiting her share of the value of the Vancouver property to that portion which is truly the product of the spousal relationship and its inherent joint contribution. [95] For all of these reasons, would set aside the distribution in the Court of Queen’s Bench of the value of the Vancouver property and substitute another. would reduce the respondent’s share of the distributable value of the property from $180,500 to $32,000. The former is the effective amount of her half share as determined at trial. The latter is her half share in the equity acquired in consequence of the pay-down of the mortgage in favor of the Hong Kong Shanghai Bank of Canada from $130,000 to $66,000. [96] In allowing the respondent $32,000 have not overlooked the effect. The effect is to reduce the extent of the exemption allowed the appellant as result of the gift he received from his mother. Were the exemption to be allowed in full the respondent’s share would amount to one half of $36,000 or $18,000 as illustrated by the following calculation: Market value of property 427,000 Less: (i) exemption 125,000 (ii) balance of bank loan 66,000 (iii) balance of parental loans 200,000 391,000 391,000 Shareable value: 36,000 [97] The anomaly is accounted for by the fact, first, that the property was bought for $430,000 rather than $427,000 and, second that the parental loans of $200,000 were not fully applied to the purchase price. About $175,000 was applied to the purchase price, with the remaining $25,000 going to improvements such as the garage. But the improvements are not reflected in the agreed market value. [98] would not adopt this calculation in determining the respondent’s share of the value of the Vancouver property because it rests on estimate and does not reflect her presumed contribution to the build-up of the equity in the property over the course of the spousal relationship. That build-up of equity, represented by the pay-down of the Hong Kong Bank mortgage during the course of the spousal relationship, amounts to $64,000. Her half share of that amount, or $32,000, is not the product of estimate but of actual experience, and her entitlement derives not only from presumed contribution but also of actual contribution. Recall, that she contributed some $600 to $700 per month to the expenses associated with the Vancouver property while the parties lived there and she was working. In fairness to her would preserve her equal share in the build-up of equity over the course of the spousal relationship by reducing the exemption attributable to his mother’s gift to the extent necessary to achieve this end. [99] As result of determining her share of the value of the Vancouver property to be $32,000, rather than $180,500 as at trial, the equalization payment required of the appellant reduces from $354,709.41 to $206,209.41. To that extent, would allow the appeal and vary the judgment below. [100] would do so on order that the appellant have his costs on appeal, such costs to be taxed on the basis of double column as usual. Dated at Regina, Saskatchewan this 24th day of June 2005. Cameron J.A. concur: Vancise J.A. Lane J.A. (In dissent) [101] have read the judgment of Cameron J.A. and respectfully disagree with his reasons. would dismiss the appeal. [102] The parties were in common-law relationship which ended in the year 2000. The break-up ultimately led to this action wherein the respondent claimed division of family property and spousal support. In the main, the trial judge awarded equal distribution of the matrimonial property and agree with his result. [103] The facts are more completely set out in the judgment of the trial judge; however, brief statement is in order for the purposes of this appeal. [104] The parties, both professionals, (the respondent being nurse, aged 28 and the appellant surgeon, aged 29) both residents of Vancouver, met in July of 1991, and began sexual relationship in August of that year. In January of 1992 the appellant was treated for cancer. While he was in the hospital, the respondent moved into the appellant's condominium and visited him on daily basis, sometimes staying overnight. At the time of the visitations the Cancer Agency's policy permitted only family members to stay overnight. After his discharge and period of recovery with his parents, the appellant resumed residing with the respondent in his condominium. The respondent continued to work and make contribution towards the accommodation. [105] The parties spent large amounts of their time together including vacations and social activities. They shared the same bed in the condominium and both parties understood the relationship to be monogamous. Marriage was discussed on several occasions beginning in 1994. [106] In 1994, the appellant's mother gifted him $125,000 to be applied to the down payment on house. The parties moved into the house together. In addition to the down payment, each of the appellant's parents loaned $100,000 and further $130,000 was obtained by way of mortgage. The loans from the appellant's parents have not been repaid and are now unenforceable under British Columbia's Limitations Act.[2] No demand was ever made for repayment of the loans. [107] In October of 1996 the appellant moved to Regina and convinced the respondent to move with him. While in Regina the respondent attended University with her tuition being paid by the appellant. He claimed spousal tax deduction for the cost of the tuition in 1997. [108] The relationship began to unravel in 1998 with the parties discussing ending their relationship in 1999 and ultimately ending it in 2000. [109] The respondent returned to Vancouver and filed petition for division of property and claim for spousal support in March 2000. [110] The decision below gave rise to three issues on appeal. The appellant claims the trial judge erred in his determination of the date the parties began their spousal relationship; he erred in his failure to grant an exemption for the down payment gifted from the appellant's mother; and finally he erred in failing to exempt from the family property the loans given by the appellant's parents. [111] The following are the relevant sections of The Family Property Act:[3] 2(1) In this Act: “family home” means, subject to subsection (2), property: (a) that is: (i) owned by or leased to one or both spouses, (b) that is or has been occupied by one or both spouses as the family home or that is mutually intended by the spouses to be occupied by one or both of them as the family home; and that is: (c) house or part of house, including the land appurtenant to it consisting of not more than 65 hectares; “spouse” means either of two persons who: (c) is cohabiting or has cohabited with the other person as spouses continuously for period of not less than two years; 20 The purpose of this Act, and in particular of this Part, is to recognize that child care, household management and financial provision are the joint and mutual responsibilities of spouses, and that inherent in the spousal relationship there is joint contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities that entitles each spouse to an equal distribution of the family property, subject to the exceptions, exemptions and equitable considerations mentioned in this Act. 21(1) On application by spouse for the distribution of family property, the court shall, subject to any exceptions, exemptions and equitable considerations mentioned in this Act, order that the family property or its value be distributed equally between the spouses. (2) Subject to section 22, where, having regard to the matters mentioned in subsection (3), the court is satisfied that it would be unfair and inequitable to make an equal distribution of family property or its value, the court may: (a) refuse to order any distribution; (b) order that all the family property or its value be vested in one spouse; or (c) make any other order that it considers fair and equitable. (3) For the purposes of subsection (2), the court shall have regard to the following: (a) any written agreement between the spouses or between one or both spouses and third party; (b) the length of time that the spouses have cohabited; (c) the duration of the period during which the spouses have lived separate and apart; (d) the date when the family property was acquired; (e) the contribution, whether financial or in some other form, made directly or indirectly by third party on behalf of spouse to the acquisition, disposition, operation, management or use of the family property; (f) any direct or indirect contribution made by one spouse to the career or career potential of the other spouse; (g) the extent to which the financial means and earning capacity of each spouse have been affected by the responsibilities and other circumstances of the spousal relationship; (h) the fact that spouse has made: (i) substantial gift of property to third party; or (ii) transfer of property to third party other than bona fide purchaser for value; (i) previous distribution of family property between the spouses by gift or agreement or pursuant to an order of any court of competent jurisdiction made before or after the coming into force of this Act or The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2); (j) tax liability that may be incurred by spouse as result of the transfer or sale of family property or any order made by the court; (k) the fact that spouse has dissipated family property; (l) subject to subsection 30(3), any benefit received or receivable by the surviving spouse as result of the death of his or her spouse; (m) any maintenance payments payable for the support of child; (n) interests of third parties in the family property; (o) any debts or liabilities of spouse, including debts paid during the course of the spousal relationship; (p) the value of family property situated outside Saskatchewan; (q) any other relevant fact or circumstance. 22(1) Where family home is the subject of an application for an order pursuant to subsection 21(1), the court, having regard to any tax liability, encumbrance or other debt or liability pertaining to the family home, shall distribute the family home or its value equally between the spouses, except where the court is satisfied that it would be: (a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; or (b) unfair and inequitable to the spouse who has custody of the children. (2) Where clause (1)(a) or (b) applies, the court may: (a) refuse to order any distribution; (b) order that the entire family home or its value be vested in one spouse; or (c) order any distribution that the court considers fair and equitable. (3) Where there is more than one family home, the court may designate to which family home this section applies, and any remaining family home is to be distributed in accordance with section 21. 23(1) Subject to subsection (4), the fair market value, at the commencement of the spousal relationship, of family property, other than family home or household goods, is exempt from distribution pursuant to this Part where that property is: (a) acquired before the commencement of the spousal relationship by spouse by gift from third party, unless it can be shown that the gift was conferred with the intention of benefitting both spouses; (b) acquired before the commencement of the spousal relationship by spouse by inheritance, unless it can be shown that the inheritance was conferred with the intention of benefitting both spouses; or (c) owned by spouse before the commencement of the spousal relationship. [112] The trial judge found the parties were cohabiting as spouses continuously for period of more than two years. He determined the parties commenced their cohabitation as spouses in late June of 1992 and determined for the purposes of distribution of the matrimonial property the commencement of the spousal relationship was two years later being June of 1994. He reviewed the indicia to be considered when determining whether or not common-law relationship is established as noted by this Court in Romanchuk v. Robin[4] which in turn referred to the indicia enumerated in Molodowich v. Penttinen[5] and Tanouye v. Tanouye:[6] [9] The courts have considered number of factors to determine what constitutes common law relationship. The most common factors relied on are those enumerated in Molodowich v. Penttinen and Tanouye v. Tanouye. The factors in Molodowich include: [16]… (1) Shelter: (a) Did the parties live under the same roof? (b)What were the sleeping arrangements? (c) Did anyone else occupy or share the available accommodation?; (2) Sexual and Personal Behaviour: (a) Did the parties have sexual relations? If not, why not? (b) Did they maintain an attitude of fidelity? (c) What were their feelings towards each other? (d) Did they communicate on personal level? (e) Did they eat meals together? (f) What, if anything, did they do to assist each other with problems or during illness? (g) Did they buy gifts for each other on special occasions?; (3) Services: What was the conduct and habit of the parties in relation to: (a) Preparation of meals, (b) Washing and mending clothes, (c) Shopping, (d) Household maintenance, (e) Any other domestic services? (4) Social (a) Did they participate together or separately in neighbourhood and community activities? (b) What was the relationship and conduct of each of them towards the members of their respective families and how did such families behave towards the parties? (5) Societal: What was the attitude and conduct of the community towards each of them and as couple?); (6) Support (economic): (a) What were the financial arrangements between the parties regarding the provision of or contribution towards the necessaries of life (food, clothing, shelter, recreation, etc.)? (b) What were the arrangements concerning the acquisition and ownership of property? (c) Was there any special financial arrangement between them which both agreed would be determinant of their overall relationship? (7) Children: What was the attitude and conduct of the parties concerning children? In Tanouye, the Saskatchewan Court of Queen's Bench summarized the factors to be considered in determining whether there exists common law relationship at para. 36 as follows: [36] The authorities seem to indicate that common law relationship or marriage requires perhaps not all but at least majority of the following characteristics: economic interdependence including an intention to support; commitment to the relationship, express or implied, for at least an extended period of time; sharing of common principal residence; common desire to make home together and to share responsibilities in and towards that home; where applicable, shared responsibilities of child rearing; and sexual relationship. As well, it appears that, superimposed on the relationship, there should be the general recognition of family, friends, and perhaps to some extent the larger community, that the particular man and woman appear as "couple", i.e., family unit.[7] [Footnotes omitted] [113] In approving the indicia as set out in Molodowich the Supreme Court of Canada in M. v. H.[8] stated: 59 Molodowich v. Penttinen (1980), 1980 CanLII 1537 (ON SC), 17 R.F.L. (2d) 376 (Ont. Dist. Ct.), sets out the generally accepted characteristics of conjugal relationship. They include shared shelter, sexual and personal behaviour, services, social activities, economic support and children, as well as the societal perception of the couple. However, it was recognized that these elements may be present in varying degrees and not all are necessary for the relationship to be found to be conjugal.[9] [114] The appellant contends because not all of the factors existed, the petitioner did not establish the existence of common-law relationship. In particular, he contends that there was no economic interdependence nor were provisions made in the event of illness and death. However, it is clear not all indicia need be present in each case. In this case the majority of the indicia found by the trial judge militated strongly in favour of spousal relationship and he made no error in so finding. It simply was not open to the appellant to select two isolated factors and consider only these factors in determining whether or not common-law relationship existed. In summary, the parties' relationship commenced in August of 1992, the spousal relationship for the purposes of the Act commenced in August 1994, with the relationship continuing until the respondent returned to Vancouver in 2000. [115] The appellant next contends he ought to be granted an exemption for the gift from his mother towards the down payment on the house he purchased. The appellant contends the gift was made to him personally and prior to the start of the spousal relationship, and thus should be exempt from distribution. [116] The issue was not dealt with in the court below as the trial judge seems to have assumed the gift was made at the time of the purchase of the Vancouver house (in September of 1994) rather than the date when the cheque was given (in late 1993 or early 1994). The respondent does not take issue with the argument the cheque was made out prior to the commencement of the spousal relationship and the appellant's mother freely acknowledged the monies were for the purposes of acquiring the house. However, the respondent argues the presumption of an equal distribution is stronger in the case of family home than for most family property.[10] [117] agree the Vancouver home ought to be distributed in accordance with s. 22 but that section requires the value shall be distributed equally "except where the court is satisfied that it would be: (a) unfair and inequitable to do so, having regard only to any extraordinary circumstance; …" [118] similar set of circumstances gave rise to decision by Vancise J. (as he then was) in Rudy v. Rudy.[11] In that case the husband's father made gift to his son prior to the marriage with the intent of benefiting the son. The trial judge refused to order an unequal division of the value of the home based on the gift. He considered s. 22(1) and found: [24] Extraordinary circumstances are circumstances which must, on proper interpretation of the statute, be circumstances other than those outlined in s. 21(1) which must be deemed to be ordinary circumstances which could affect equal distribution of matrimonial property other than the matrimonial home.[12] [119] Here, the mother's purpose was to help her children in the expensive Vancouver real estate market and to make their lives "a bit more stable." The appellant's mother denies she intended to give the money for the use of both parties, saying she only saw them as girlfriend and boyfriend, but her testimony also indicates she was of the view the parties would not become couple until they became married. [120] The gift was made by the appellant's mother with the full knowledge the parties were living together. She knew the relationship between the parties and she spent many occasions together with them. They, the respondent and the appellant's mother, exchanged gifts at Christmas. His mother made similar gift to the appellant's sister who at that time was living with her boyfriend, (whom the daughter ultimately married). [121] In this case the contribution by third party on behalf of spouse to the acquisition of family property is one of the “usual” factors outlined in s. 21 and in my view it would be inequitable to exempt the gift from distribution. [122] Finally, the trial judge did not err in failing to deduct from the family property the loans given by the appellant's parents. In my view the trial judge made finding the loans were statute barred. He had this to say: 57 The respondent also claims that the debt to his parents associated with the Vancouver home should be taken into account. Each of his parents is said to have lent the respondent $100,000.00 in September 1994. The loans were later secured by mortgages signed by the respondent March 15, 1995. The mortgages are payable on demand. There has been no demand and no payments made. Collection of the loans appears to be statute barred by the Limitation Act, R.S.B.C. 1996, c. 266, ss. 3(5) and (6) after six years. Counsel for the respondent suggested the respondent had "confirmed" the debt or his obligation to repay on various occasions. However s. 5(5) of the Limitation Act requires any confirmation to be in writing and nothing has been produced. Statute barred debts are not considered in dividing family property. Russell v. Russell, 1999 CanLII 12313 (SK CA), [2000] W.W.R. 619; (1999), 180 Sask.R. 196 (C.A.) at paras. 113 and 114. [Emphasis added] 58 Apart from being statute barred, would not consider the "loans" from Leith's parents in the division of family property as it is far from clear the respondent will ever be required to repay them. It has now been approximately nine years. While Leith's income when he purchased the Vancouver home was perhaps unexceptional, he has had substantial income for the last number of years and made no payments.[13] [123] Although the trial judge uses the words "collection of the loans appears to be statute barred…" see this as simply imprecise language as the trial judge goes on to refer to the specific sections and the further provision of the Act requiring confirmation be in writing. In other words he fully directed his mind to the legislation. The legislation was tendered pursuant to s. of The Saskatchewan Evidence Act[14] and no objection was taken by appellant’s counsel. In my view the trial judge clearly considered the legislation and his interpretation of the legislation was not challenged by the appellant, indeed the appellant does not claim the trial judge misinterpreted the legislation but claims the loans ought to be exempt from distribution. [124] The second reason he gives for not exempting the loans from distribution, as set out in para. 58 of his judgment, in my view becomes superfluous given his finding the loans were statute barred and not exempt. However, again as read his judgment he was simply using less than precise language to note the loans were not likely to be repaid. [125] Because the loan was not statute barred at the date of the petition it was open to the trial judge to choose that date to determine if the debt ought to be exempt as opposed to the date of the action as he did in Thompson v. Thompson.[15] In that case the trial judge found the loan, (although statute barred), from the party's family member likely to be repaid upon the lender's death out of the borrower's share of the estate and exempted the loan. Here, the trial judge, as read para. 58 of his judgment, made the finding the loans would likely never be repaid. The trial judge made no error in refusing to exempt the loan from distribution. [126] see no basis for interfering with the decision below and would dismiss the appeal with costs on double Column V. DATED at the City of Regina, in the Province of Saskatchewan, this 24th day of June, A.D. 2005. [1] Section 22(2) of The Matrimonial Property Act, S.S. 1979, c. M-6.1 [2] R.S.B.C. 1996, c. 266. [3] S.S. 1997, c. F-6.3. [4] (2003), 2003 SKCA 50 (CanLII), 232 Sask. R. 198 (C.A.). [5] (1980), 1980 CanLII 1537 (ON SC), 17 R.F. L. (2d) 376 (Ont. Dist. Ct.). [6] (1993), 1993 CanLII 8998 (SK QB), 117 Sask. R. 196 (Q.B.). [7] Supra, note 3. [8] 1999 CanLII 686 (SCC), [1999] [10] Rudy v. Rudy (1983), 1983 CanLII 2080 (SK QB), 22 Sask. R. 261 at para 24. [13] (2003), 2003 SKQB 514 (CanLII), 243 Sask. R. 126 (Q.B.). [14] R.S.S. 1978, c. S-16. [15] 2004 SKCA 169 (CanLII); [2004] S.J. No. 810 (Q.L.).

This appeal arises from proceedings under The Family Property Act. The couple had lived together for several years. She sought judgment distributing their property. The property included a house in Vancouver, which he had acquired some years earlier with the financial assistance of his parents. The trial judge found that the respondent had acquired the house after the commencement of the spousal relationship and then went to hold that the petitioner was entitled to an equal share of its value with no reduction owing to the gifts or loans from his parents. The respondent appealed. HELD: Appeal allowed by the majority. Lane J.A. wrote in dissent. Majority: 1) The Vancouver property was acquired after commencement of the spousal relationship. The value of the property did not qualify for exemption under s. 23(1)(a) of the Act. There are a number of facts that merit emphasis. The respondent received $125,000 from his mother before the spousal relationship started. He still had that amount on hand when the relationship commenced. He used the money as a down payment on the purchase of the Vancouver house shortly after the relationship commenced. By establishing these facts, the respondent established the requisite conditions for the grant of an exemption of the value of the Vancouver property to the extent of the $125,000. 2) The trial judge erred in declining to take into account the loans of $100,000 the appellant received from each of his parents for the purpose of purchasing the Vancouver property. There was insufficient evidence before the trial judge to enable him to find that the mortgage debts were statute-barred and he did not make a firm finding on this point. The trial judge's finding that the respondent will not have to repay the loans was incomplete. He did not assess the loans in light of s. 21(3)(e) of the Act. On the whole of the circumstances concerning the Vancouver property and the length of the spousal relationship, there is no tenable basis for not giving effect to s. 21(3)(e) of the Act and the contributions made by the respondent's parents on his behalf to the acquisition of the property. The petitioner is entitled to share in the build up of the equity in consequence of the pay-down of the mortgage. Minority: 1) The Vancouver home ought to be distributed in accordance with s. 22 of the Act. The gift of $125,000 was made by the respondent's mother with the full knowledge that the parties were living together. In this case, the contribution by a third party on behalf of a spouse to the acquisition of family property is one of the usual factors outlined in s. 21 of the Act and it would be inequitable to exempt the gift from distribution. 2) The trial judge did not err in failing to deduct from the family property the loans given by the appellant's parents. He made a finding the loans were statute-barred. The trial judge clearly considered the legislation and his interpretation of the legislation was not challenged by the respondent. He also made the finding the loans would likely never be repaid. He simply used less than precise language.

9_2005skca89.txt

J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: MARY HELENE HALEY and JOHN CAMERON HALEY RESPONDENT M.C. Phillips for the petitioner L.E. Leslie for the respondent JUDGMENT ARCHAMBAULT J. February 15, 1996 The petitioner, Mary Helene Haley ("Mary"), launched this divorce action against the respondent, John Cameron Haley ("John"), in January, 1990. In addition to dissolution of the marriage she claimed custody of their children, Courtney Haley and Chelsea Haley, support for both herself and the children, an equal division of the matrimonial property and costs. THE ISSUES At the commencement of the trial it was indicated that the parties were agreed on the divorce based on their separation in excess of one year and that Mary be granted custody of the children with reasonable access to John upon reasonable notice. While the liability of John to pay maintenance for the children is not disputed, the parties were not fully agreed on the quantum thereof, which requires determination of John's income. They agreed, however, thatthe amount of the maintenance should be based on the"Federal/Provincial/Territorial Family Law Committee's Reportand Recommendations on Child Support" (January, 1995)guidelines. There remains for determination the quantum ofmaintenance for the children, the issue of spousal maintenanceand the division of matrimonial property. BACKGROUND INFORMATION AND HISTORY Mary and John were married at Antigonish, Nova Scotia, on August 30, 1975. Mary was 18 years old at the time and John was 21. They had two children, Chelsea, born September 4, 1985, and Courtney, born January 24, 1988. They have been living separate and apart for approximately six years, having ceased cohabitation at the beginning of 1990. At the time of their marriage, John was member of the Royal Canadian Mounted Police, having started employment with the force in November, 1974, at age 19. His first posting was in Yorkton, Saskatchewan. The year prior to their marriage, Mary, aged 17 years, attended Dalhousie University (Academic year, fall 74/spring 75) where she completed the first year of Bachelor of Science program. Immediately after their marriage, the parties moved to Yorkton, Saskatchewan, where John had been posted. That interrupted Mary's university education. Mary secured employment at the Bank of Commerce in Yorkton very shortly after their arrival there. She progressed very well and became branch accountant, performing the duties of loans officer and assistant manager. She was transferred to the main branch of the bank in Yorkton where she was promoted to branch administrator. She remained there until December, 1979. In September, 1979, John was transferred to Imperial, Saskatchewan. As the parties had already started experiencing marital problems, Mary initially hesitated in following him but finally decided to do so. In December, 1979, they moved to Imperial, town with population of approximately 500. Mary, of course, had to resign her job at the bank. She endeavoured, without success, to obtain employment at the Royal Bank in Imperial; she was told that they would not hire persons who were transient as members of the R.C.M.P. are wont to be. Mary managed to eventually (in 1982) get part-time employment at the Post Office. She, in addition, qualified herself and conducted life support courses (cardiopulmonary resuscitation CPR) through the Community College. She completed six month course granting her an Emergency Medical Technician certificate. She did volunteer work with the Imperial Ambulance Service. Prior to the birth of Chelsea, John and Mary did fair bit of travelling, including trip to Europe (1982) and Australia (1985). They purchased house in Imperial which they subsequently had difficulty selling. In the summer of 1986 Mary secured employment at the Imperial Union Hospital, however, the house, after four years of effort, was finally sold and the parties moved to Grenfell, Saskatchewan. Although John had been transferred to Broadview in 1986 he was allowed to reside in Grenfell. There were no job opportunities there for Mary. She took course and conducted workshops in emergency medical services and casualty simulation. In 1988 the parties moved to Broadview. With the birth of their second child, Courtney, Mary became full-time housewife and mother. There were ongoing marital problems which Mary attributed largely to John's extramarital affairs. Their relationship deteriorated to the point where the parties decided to separate in December, 1989, although John left the matrimonial home later in February, 1990. Following the separation Mary was able to secure some temporary employment through work development program sponsored by Canada Employment. By order dated February 14, 1990, she obtained exclusive possession of their matrimonial home situated in Broadview. John paid the rent on this house. In mid-April Mary moved to Yorkton. She was on social assistance for few months and obtained low income housing. It is worthy of note that upon her return to Yorkton she was unable to obtain employment with CIBC. Despite her good track record with the bank, after 11 years her experience was outdated. There had been technological changes in banking operations and reduction of their employee force which militated against her resuming employment with the bank. Some time after she moved to Yorkton, John commenced paying her maintenance in the sum of $1,000.00 per month, being $400.00 per month for each of the two children and $200.00 per month spousal support. This was formalized by an order for spousal and child support in May, 1991. John continued to pay that amount of maintenance until the trial. Meanwhile, Mary obtained temporary and part-time jobs and studied part time. In October, 1992, she decided to return to school on full-time basis. It is her intention to complete the training program to become Certified Management Accountant (CMA). However, she was not able to afford full- time attendance at SIAST and had to resort to part-time study. She recently secured employment with the territorial accounting office of the Saskatchewan Housing Authority, which pays her salary of $23,800.00 per annum. If she was able to study full time she would expect to complete her course in 1998 but on part-time basis (three classes per year) she anticipates it will take until 2001. She expects that she would receive income at the internship stage of her training, after June, 1999. Throughout John had maintained and progressed in his employment with the R.C.M.P. He has taken every professional development course offered by the R.C.M.P. His income has increased substantially over the years. Currently his basic salary is $50,508.00 per annum. However, he has consistently made more than that in recent years from overtime pay, various supplementary allowances as well as business income. His yearly income for the years 1991 to 1994 as reported in his yearly income tax returns is as follows: 1991 $52,981.00; 1992 $52,400.00; 1993 $54,891.00; 1994 $57,395.00 ($55,693.00 after deduction of business loss of $1,702.00). Cara Brown indicated that John earns 8.5% more income than the average police officer in circumstances similar to his. In May, 1984, John met Ann M. Callaghan with whom he commenced living, as man and wife, in August, 1990, and continued to do so at the time of trial. She is registered nurse with specialization in advanced clinical practice and public health. She is currently employed as community health co-ordinator. Her take home pay is $2,600.00 per month from gross salary of $51,000.00 per year. John and Ms. Callaghan purchased home in Montmartre, Saskatchewan, for $46,000.00. The purchase was financed by way of loan of $6,000.00 for the downpayment and mortgage of $40,000.00. Ms. Callaghan is repaying the $6,000.00 downpayment loan. They share living expenses. Ms. Callaghan is assisting her daughter, Michelle, who is 20 years of age and in attendance at the University of Saskatchewan in Saskatoon. Mary lives in home owned by David Neibergall. She assumes and pays the costs for the maintenance of herself and the children, including rent payment of $400.00 per month to Mr. Neibergall. David Neibergall resides in the house. They share the entire house. Their relationship is one of companionship, including sexual relations. It is modified common-law relationship with each party paying her or his own way. In my view, Mary's situation in this regard does provide her with adequate housing at reasonable cost. Otherwise the situation does not, in my view, significantly affect decisions to be made herein. DETERMINATION OF MATTERS IN ISSUE 1. Respondent's income. In order to determine the quantum of child support and the issue of spousal support John's income level for this purpose must be determined. It is common ground that his basic salary is currently $50,508.00 per year. However, he has consistently since 1991 made in excess of that amount. Hewas injured early in 1995 and has been on light duty servicesince. He will require another operation in early 1996 which will result in extending his time on light duty. John indicated that while he has not suffered any reduction in basic pay he, as result of his injury and light duty assignment, is not in position to earn the supplementary allowances he did in the past. While he may not be in position to work overtime, he has failed to convince me that his other supplementary allowances, such as clothing, senior constable differential and shift differential pay will not continue. Obviously, the moving allowance of $4,209.00 which he received in 1994 cannot be taken into account in the determination of salary for the purposes of maintenance. This allowance is contingent on John being transferred. John was not always forthcoming in answering questions about his income; he tended to be evasive, skate around and what appeared to me to be obvious admissions had to be pressed out of him. In the result it is my view that the reasonable and realistic figure to use for the determination of maintenance is gross salary of $53,000.00 per annum. If there is any significant decrease in income in the future, John can always make an application to vary, as indeed Mary can should his income prove to be significantly in excess of $53,000.00 year. There is currently no issue of medical discharge. John is not seeking one and Superintendent Cronchite indicated that no steps had been initiated by the R.C.M.P. seeking his discharge. Should he become disabled to the point that he would have to discontinue his employment with the R.C.M.P. and suffer reduction of income, it would be open to him to make an application to vary. For the time being he continues to be full-time member of the force with regular pay and it is on that basis that decisions ought to be based. 2. Economic Disadvantage Quite apart from the economic disadvantage generally suffered by women as result of marriage breakdown, as was recognized by L'Heureux-Dube J. in Moge v. Moge (1993), 43 R.F.L. (3d) 345 (S.C.C.), it is clear that in this case Mary has in fact personally suffered substantial economic disadvantage. As result of her marriage to John she had to interrupt her university education after successfully completing the first year of bachelor of science program. She secured employment at the CIBC in Yorkton upon moving there in 1975 and progressed rapidly achieving the position of branch administrator at the main branch of the bank in Yorkton in less than four years. She was required to quit her job after her husband was transferred to Imperial, Saskatchewan, where she joined him in December, 1979. From then on employment opportunities were very restricted due to his moving to smaller centres and the transient lifestyle of an R.C.M.P. officer. She worked part time between 1980 and 1986 and was virtually unemployed between 1986 and 1990. The two children, Chelsea and Courtney, born in 1985 and 1988 respectively, further hampered her employment opportunity as she had to fulfil the responsibilities of housewife and mother. Nonetheless she persisted in her efforts to self improvement as best she could in the circumstances and resorted to whatever employment was available in the smaller centres were John was posted. However, she clearly suffered substantial reduction in income and income earning potential as result of the moves required for John to maintain and pursue his career with the R.C.M.P. Her withdrawal from the regular labour force for considerable period of time clearly negatively affected her advancement and current earning capacity. She had no opportunity to acquire security and tenure of employment or to build up fringe benefits such as health care and pension benefits for future security. While Mary's economic disadvantage is obvious from the facts herein, it is, in addition well established in the report (Tab 29 of Exhibit P-1) and evidence of Cara L. Brown, whose expert qualifications were admitted by both parties. She indicated that if Mary had maintained her employment at CIBC she would have been earning in excess of $30,000.00 per annum in 1990 and as much as $40,000.00 in 1995. In contrast, she currently earns $23,800.00 per annum. Cara Brown estimated Mary's economic disadvantage from 1990 to 1995 to be $69,000.00 (see Table 7, p. 29). Based on her obtention of her CMA certificate in the year 2001, her loss of future earning capacity equals $87,000.00. It increases to $17,000.00 if she ceases her present work to obtain her CMA certificate in 1998 based on full-time attendance at SIAST. It should be noted that the likelihood is that she will continue her employment and study on part-time basis, as she indicated at the trial. find that Ms. Brown's findings and conclusions are based on reasonable and realistic assumptions. Of course, while contingencies such as unemployment, disability, mortality and retirement are built in Cara Brown's calculations, it is nonetheless possible that Mary might have discontinued employment for other reasons or been reduced to part-time duties due to downsizing. Cara Brown indicated that that was more likely to happen to lower level personnel rather than to supervisory personnel such as Mary was when she left CIBC. On the other hand Mary has clearly demonstrated her resilience, ability and motivation by securing employment and pursuing her CMA study program following the breakup of the marriage. While it is difficult to accurately ascertain Mary's loss in monetary terms, Ms. Brown's estimates and observations represent realistic and reasonable approach in endeavouring to do so and her report should be taken into account by the court in the determination of spousal maintenance and the division of matrimonial property even though the court is not compelled to accept her exact figures. Future loss of income and earning capacity can never be measured in precise terms given the contingencies of life. Nevertheless, Ms. Brown's report provides the court with useful information which the court should carefully consider. On the other side of the coin the court must also take into account any economic advantage enjoyed by Mary as result of the marriage which necessarily will offset any disadvantage. In this case the parties, through their joint efforts, accumulated modest amount of matrimonial property including the more significant pension plan which John acquired as result of his employment with the R.C.M.P. Mary will receive her share in the distribution of the matrimonial property. That must be taken into account in determining the degree of her economic disadvantage. will now address the question of the division of the matrimonial property. 3. Division of Matrimonial Property (a) Assets other than John's Pension Plan Upon separation the parties divided their personal effects and household goods. While these goods were never appraised John took the position that Mary had received the greater share thereof, while Mary was of the view that the division was pretty well equal. Excluding the 1984 Mazda, which was valued at $7,000.00, it is my view that each party should retain the goods in her or his possession without further adjustment. If indeed Mary did receive the greatershare I am not satisfied that it was of any great significanceand, in any event, it can well be attributed to partialcompensation for her economic disadvantage. In any event, John indicated during his testimony that even if Mary had received more than he did, he did not intend to pursue his claim for equalization of household goods. In addition to the 1984 Mazda, and apart from John's R.C.M.P. pension plan and the Yorkton Restaurant Venture Capital Corporation shares, the parties had investments (in John's name) valued at approximately $15,000.00 at the date the action was commenced (Claude Resources Stock Savings Plan, Templeton Growth Fund and Boulton Tromblay International (Mutual Funds)). To this should be added further $2,860.00 to cover the earned income tax refund and the paid up amount of $820.00 on the Canada Savings Bond, both of which were in existence at the date this action was commenced. This yields total of $25,680.00 available for distribution between the parties. From this amount there must be deducted the sum of $1,000.00, representing the balance of the credit card account existing at that time. That leaves balance of $24,680.00 for equal distribution between the parties, being $12,340.00 each. Mary received the Mazda valued at $7,000.00. The balance of the assets ($17,680.00) were in John's possession. Accordingly, to even out the division John will be required to pay Mary the sum of $5,340.00. The 1,000 shares in the Yorkton Restaurant VentureCapital Corporation are in the joint names of the parties andwill be divided equally between them when and if anything isrealized on the shares. The only remaining item of matrimonial property, and the most significant, is John's R.C.M.P. pension plan which will now deal with. (b) John's R.C.M.P. Pension Plan Cara Brown provided the court with four valuation options in two categories for the purpose of determining Mary's share of John's pension (See Tabs 29, 30, 31, 32, 33 and 34 of Exhibit P-1). They are as follows: Method/Date of Without Survivorship With Survivorship Valuation Benefits Benefits Termination: Date of Application $37,008.00 $41,217.00 Termination: Date of Trial $50,530.00 $56,132.00 Retirement: Date of Application $52,01.00 $57,869.00 Retirement: Date of Trial $61,775.00 $68,368.00 The R.C.M.P. pension plan provides for survivorship benefits for the spouse of the member as long as she/he remains spouse upon the member's death. With the grantingof the divorce as part of this judgment it follows that Marywill be disqualified from ever receiving this benefit. Accordingly, in my view, the fair thing to do is to use theenhanced value of the "With Survivorship Benefits" column indetermining Mary's share of the pension. The advantages and disadvantages to both parties of using the termination or retirement approaches to valuation are discussed by Kurisko J. of the Ontario Court of Justice in Basiello v. Basiello, 1995 CanLII 7231 (ON SC), [1995] O.J. No. 2989 (Q.L.) (Ont. C.J.). Mr. Justice Kurisko presents very enlightening and helpful discussion of the various options available, which do not intend to repeat here. Suffice it to say that, in my view, fairness and equity, dictates that combination of both approaches be used, ie. the midpoint between the retirement and termination methods. As was indicated by Klebuc J. in Knippshild v. Knippshild, 1995 CanLII 5840 (SK QB), [1995] W.W.R. 257 (Sask. Q.B.), the question for determination is which method of evaluation or combination of methods will result in reasonable value having regard to all of the circumstances. He points out that the courts have used variety of approaches to meet varied factual circumstances. He stated at p. 269: Which method of evaluation or combination of methods will result in reasonable value having regard to all of the circumstances? There is no consistent approach as to which valuation method should be used, presumably because of the varied factual circumstances in the cases presented to the courts. In Partridge v. Partridge (1984), 1984 CanLII 2349 (SK QB), 36 Sask. R. 70 (U.F.C.), and Kalytuk v. Kalytuk [(1992), 1992 CanLII 7853 (SK QB), 98 Sask. R. 311 (U.F.C.)] Carter J. and Dickson J., respectively, held the termination method to be the preferred approach since it requires no speculation as to the future contingencies. In Grainger v. Grainger (1985), 1985 CanLII 2461 (SK QB), 39 Sask. R. 294, affirmed by C.A. (1987), 1987 CanLII 4836 (SK CA), 54 Sask. R. 10, and Blackwell v. Blackwell [(1987), 58 Sask. R. 297 (U.F.C.)] Gagne J. and Carter J. applied combination of the termination method and the retirement method in arriving at the value for pension entitlement. In Biblow v. Biblow [(1991), 1991 CanLII 7811 (SK QB), 92 Sask. R. 68 (Q.B.)] Scheibel J. applied the retirement method where the division involved marriage of 24 years and the parties were receptive to an "if and when" approach to distribution. In this case we are dealing with a marriage of anapproximate duration of 15 years. John is currently 41 years of age. He will be able to retire without penalty after 25 years of service (December, 1999). If he wishes to obtain the maximum pension available he must work total of 35 years. He can, therefore, substantially increase his pension by opting to work an additional 10 years. He would then, at age 55, be able to retire on maximum pension (70% of an average of his six best years of service). Based on these considerationsand given the economic disadvantage suffered by Mary, I agreewith Cara Brown that somewhere in between (preferably the mid-point) the termination and retirement method is the route togo in this case. I am persuaded by the Grainger v. Grainger(1985), 1985 CanLII 2461 (SK QB), 39 Sask. R. 294, affirmed by C.A. (1987), 54 Sask. R.10, and Blackwell v. Blackwell (1987), 1987 CanLII 4592 (SK QB), 58 Sask. R. 297(U.F.C.) that the combination method is an acceptable methodof valuation in this case. Finally, there remains to decide which valuation date should be used, the date the action was commenced or the date of adjudication. With respect to the division of the other matrimonial assets and liabilities have used the date of application, which struck me as the most fair in the circumstances. Notwithstanding that, in my view, different date can be used for the valuation and division of the pension plan. While generally all matrimonial property should be valued as of the same date (date of application or date of adjudication ss. 2(1) of The Matrimonial Property Act, S.S. 1979, M-6.1) the Saskatchewan Court of Appeal has recognized and sanctioned the valuation of different assets on different dates where good reason to do so exists. In Tataryn v. Tataryn (1984), 1984 CanLII 2663 (SK CA), 30 Sask. R. 282 at p. 285, Cameron J.A., speaking for the court, stated: Mr. Tataryn complains that, while the trial judge chose to value some items of property as at the date of application, he valued others as at the date of adjudication, an inconsistency which worked to Mr. Tataryn's detriment. His counsel submitted that, as matter of principle, the whole of the property ought to have been valued consistently, as of one date or the other. Generally speaking, agree this should be done although note the Act does not require it. In some cases it may be desirable, even necessary, to value one asset as at the time of application and another as of the time of trial, but would add that whenever this is done it should be explained; otherwise it may appear unfair. And there ought to be good reason for it. See also Mitchell v. Mitchell (1993), 1992 CanLII 8234 (SK CA), 100 Sask. R. 149 (Sask. C.A.) per Vancise J.A. for the court at pp. 154-55: This Court has stated on more than one occasion that the court can use the date of adjudication and the date of application in the same application to value matrimonial property. The date of adjudication can be used for the valuation of some of the assets such as the land, and the date of the application can be used for the valuation of the remaining assets, provided that the change in dates for the purpose of evaluation is applied consistently to the assets of both parties. See Mehling v. Mehling (1989), 1989 CanLII 4775 (SK CA), 75 Sask. R. 195; 1989 CanLII 4775 (SK CA), 20 R.F.L. (3d) 42 (C.A.). In this case, given the length of the marriage and the options open to John to enhance the value of his pension for his personal benefit and, more importantly, the significant economic disadvantage suffered by Mary, am of the view that the date yielding the most generous share of the pension to Mary is the one to be used. Accordingly, set the date of adjudication as the date for valuation of the pension plan. The result is as follows: Amount Termination: Date of Trial 56,132.00 Amount Retirement: Date of Trial 68,568.00 Total $124,700.00 Average ($124,700.00 � 2) 62,350.00 Hence, there will be an order providing for transfer by way of rollover of that amount from John's pension plan in Mary's name. 4. Quantum of Child Maintenance John acknowledged his obligation to contribute to the maintenance of the two children, Chelsea and Courtney. Counsel for the parties were in agreement that support for thechildren should be set in accordance with theFederal/Provincial/Territorial guidelines based on John'sgross yearly income as determined by the court, ie.$53,000.00. John specifically stated that he was prepared to pay the sum of $600.00 per month per child. That amount is in the ballpark and while somewhat below, is close to the amount recommended by the guidelines. Mary indicated that the costs of maintaining herself and the children was approximately $2,462.00 monthly, two- thirds of which she attributed to the children. Given therelative income of the parties as well as current income taximplications, I find the amount of $600.00 per month per childto be reasonable and fair. note that that amount appeared to be satisfactory to Mary. Child maintenance should, therefore, be set at that level. 5. Spousal maintenance The question and amount of spousal maintenance is more difficult to resolve. In authorizing the court to make an order for spousal support, s. 15 of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) stipulates in ss. (5) and (7) the factors and objectives which the court should consider in making such an order. Subsections 15(5) and (7) provide as 15(5) In making an order under this section, the court shall take into consideration the condition, means, needs and other circumstances of each spouse and of any child of the marriage for whom support is sought, including (a) the length of time the spouses cohabited; (b) the functions performed by the spouse during cohabitation; and (c) any order, agreement or arrangement relating to support of the spouse or child. (7) An order made under this section that provides for the support of spouse should (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses pursuant to subsection (8); (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, promote the economic self- sufficiency of each spouse within reasonable period of time. As previously indicated this was marriage of approximately 15 years in duration which resulted in substantial economic disadvantage to Mary. The breakdown of the marriage has caused her economic hardship. Shortly after their separation she was obliged to go on social assistance for time. John has been less than generous in paying monthly child ($800.00) and spousal ($200.00) support in the total sum of $1,000.00, which is less than he should have been paying for the two children. On that basis Mary is certainly entitled to spousal support. The order for child maintenance which will form part of this judgment will reasonably apportion the contribution of each spouse for child support in accordance with their respective ability to pay. The court in determining the justification for and the amount of spousal support must seek to promote the economic self-sufficiency of each spouse, in this case Mary in particular. Mary's plans for the future are realistic; she is taking concrete steps to ensure her eventual self-sufficiency. She has commenced and is effectively pursuing her CMA program, while maintaining full employment. believe her objective of working and studying part time is realistic and that John should assist her for reasonable length of time to allow her to complete her study program. In my view, spousal maintenance should be paid until she has had reasonable time to obtain her CMA certification in the year 2001. Cara Brown has set out in Table of her report various amounts of loss which she has converted into periodic spousal maintenance payments for five and 10 year periods. The suggested spousal maintenance payments required to offset the loss of potential income are very substantial. The economic disadvantage resulting from loss of potential earnings must, of course, be offset by the share of matrimonial property which Mary will receive. In addition to what she has already received she will get lump sum payment of $5,340.00 plus share of John's pension which have valued at $62,350.00. The amount of spousal maintenance payable must be adjusted to take all of that into account. In the result, John should pay Mary spousalmaintenance in the sum of $800.00 per month until June 1,2001. That will provide Mary with gross income before taxes of $48,000.00 (salary $24,000.00, child maintenance $14,400.00, and spousal maintenance $9,600.00) for three persons. John, on the other hand, after deduction of maintenance payments, will be left with gross income of $29,000.00 ($53,000.00 minus $14,400.00 and minus $9,600.00) for one person. Looking at it from an income tax implication standpoint, Cara Brown indicated that if the total maintenance payments were set at $2,200.00 per month, John would be left with net after tax amount of $1,717.00 per month for himself, while Mary and the children would have net amount of approximately $3,034.00 per month for three persons. As have determined that the monthly spousal and child maintenance will total $2,000.00 per month, John will be left with higher net monthly amount of at least $1,917.00, while Mary will end up with approximately $2,834.00. In my view, payment of that amount of maintenance is manageable for John. Given the needs of both parties and the children, believe that that is fair distribution of available income during the next five years or so, which should allow all of them to enjoy comparable standard of living. This should, as well, allow Mary the time and resources necessary to achieve self-sufficiency. At the trial the parties indicated their agreement that any maintenance ordered by the court would apply retroactively to the date that the matter was initially set for trial, namely, September 5, 1995. Accordingly, the effective date for the commencement of payment of the child and spousal maintenance ordered herein shall be October 1, 1995. In summary, it is hereby ordered as follows: 1.That John Cameron Haley and Mary Helene Haley who were married at Antigonish, Nova Scotia, on August 30, 1975, are divorced and unless appealed this judgment takes effect on the thirty-first day after the date of this judgment. 2.That Mary Helene Haley shall have sole custody of the children, Chelsea Haley and Courtney Haley, and John Cameron Haley shall have reasonable access to the said children upon reasonable notice. 3.That John Cameron Haley shall pay Mary Helene Haley childmaintenance in the sum of $600.00 per month per child (total$1,200.00 monthly) for the two children, the said amount to bepaid on the first day of each and every month commencing onOctober 1, 1995, and continuing for as long as the saidchildren remain children of the marriage within the meaning ofthe Divorce Act. 4.That John Cameron Haley shall pay Mary Helene Haley spousalmaintenance in the sum of $800.00 per month on the first dayof each and every month commencing on October 1, 1995, andcontinuing up to and including June 1, 2001. 5.In order to finalize the division of matrimonial property:(a)That each party shall retain for his or her ownuse and benefit the household items and personal effectspreviously distributed. (b)That the 1,000 shares in the Yorkton RestaurantVenture Capital Corporation be divided equally between theparties. (c)That John Cameron Haley pay Mary Helene Haley lump sum of $5,340.00 within 60 days of this order. (d)That there shall be spousal rollover in the sum of $62,350.00 from John Cameron Haley's R.C.M.P. pension plan in the name of Mary Helene Haley. 6.That Mary Helene Haley shall have her costs to be taxed against John Cameron Haley, including one-half of the costs for the preparation of the reports and pension valuations by Cara L. Brown.

At issue was the determination of the quantum of spousal and child support and division of matrimonial property. HELD: 1)The respondent's supplementary allowances were taken into consideration in finding a gross salary of $53,000.00 per annum. Due to an injury he was no longer able to work overtime but was working full-time. Should a medical discharge become necessary an application to vary can be brought at that time. 2)The petitioner suffered a substantial economic disadvantage. The frequent moves due to the husband's employment had disrupted the petitioner's employment and university education. However, the court must also take into consideration the economic advantage enjoyed as a result of the marriage including the pension plan of the spouse. 3)If the petitioner did receive the greater share of the household goods it can be attributed to partial compensation for her economic disadvantage. Shares in joint names were divided equally. Other assets were divided equally. 4)Upon the granting of the divorce the petitioner will be disqualified from receiving the pension survivorship benefits. The fair solution was to use the enhanced value of the 'With Survivorship Benefits' column and the date of adjudication was used as the valuation date. The combination method of valuation was used in view of the 15 year marriage and given the economic disadvantage suffered by the petitioner. 5)The parties agreed that child support should be set in accordance with the Federal/Provincial/Territorial guidelines based on the respondent's gross yearly income. $600.00 per month per child was awarded. 6)The court must seek to promote the economic self-sufficiency of each spouse. The petitioner's future plans were realistic. $800 per month until June 1, 2001 was awarded for spousal support. 7)Costs including one-half of the cost of preparing reports and pension valuations were awarded to the petitioner.

b_1996canlii6818.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 82 Date: 20040521 Between: Docket: 816 Her Majesty the Queen and Wayne Joseph Daley Before: Bayda C.J.S. (in chambers) Counsel: W. Dean Sinclair for the Applicant Ian McKay, Q.C. for the Respondent Application: From: Q.B.A. No. of 2004, J.C. Regina Heard: May 20, 2004 Disposition: Allowed Written Reasons: May 21, 2004 By: The Honourable Chief Justice Bayda BAYDA C.J.S. [1] There will be an order pursuant to s. 680 of the Criminal Code directing a review by the Court of Appeal of the decision in this matter made by Gerein C.J.Q.B. on May 7, 2004. [2] The Registrar will fix a time and date suitable to the Court and counsel. DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of May, A.D. 2004. Bayda C.J.S.

Fulltext of judgment follows: [1] There will be an order pursuant to s. 680 of the Criminal Code directing a review by the Court of Appeal of the decision in this matter made by Gerein C.J.Q.B. on May 7, 2004. [2] The Registrar will fix a time and date suitable to the Court and counsel. DATED at the City of Regina, in the Province of Saskatchewan, this 21st day of May, A.D. 2004.

c_2004skca82.txt

THE COURT OF APPEAL FOR SASKATCHEWAN HER MAJESTY THE QUEEN CORAM: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Sherstobitoff The Honourable Mr. Justice Lane COUNSEL: Mr. D. Rayner for the Crown Ms. M. Pappas for the respondent DISPOSITION: Appeal Heard: September 7, 1994 Appeal Allowed:September 7, 1994 (oral) Reasons: September 12, 1994 On Appeal From: His Honour Judge L. J. Smith, Youth Court Appeal File: 6374 Oral Reasons by:The Honourable Mr. Justice Cameron In concurrence:The Honourable Mr. Justice Sherstobitoff The Honourable Mr. Justice Lane CAMERON J.A. This is an appeal by the Crown against a sentenceimposed upon the respondent, a young offender, as a resultof his having committed two armed robberies. He was sentenced by His Honour Judge Linton Smith to term of one year in closed custody in respect of each of the offenses. The two terms were ordered to be served consecutively, but concurrently with the remainder of two year term of closed custody earlier imposed upon the respondent. TheCrown appealed on the ground the two terms of closedcustody, having been ordered to be served concurrently withthe earlier term, did not constitute a fit sentence havingregard for the seriousness of the offenses, therequirements of deterrence, and the need to uphold publicconfidence in the administration of justice. The background of the matter is this. The respondent, now 17 1/2 years old, was in the Paul Dojack Youth Centre, serving out two year term of closed custody for an array of offenses, when he escaped on October 18th, 1993. On January 27th, 1994, while still at large, he and friend held up two convenience stores in Regina while armed with hand gun. In each instance, the respondent wielded the weapon, said to have been pellet gun. He was arrested shortly afterwards and remained in custody on remand until June 1st, when he was sentenced. In addition to imposing the sentence under appeal, Judge Smith also sentenced the respondent to term of secure custody for escaping from the Centre, term consisting of the time he had spent on remand awaiting disposition of the armed robbery charges. When thus sentenced on June 1st,about 18 months of the earlier term of secure custodyremained to be served. As a result of that and of theorder directing the present terms be served concurrentlywith the remainder of the earlier term, the respondent waseffectively sentenced to a term of six months in respect ofthe armed robberies. Each of us is of the view the appeal must be allowed. We are of the opinion that the two terms of secure custody, having been ordered to be served concurrently with the remainder of the earlier term, simply did not constitute fit sentence. The sentence does not begin to answer adequately to the requirements of fitness. An additionalsix month period of secure custody for these armedrobberies does not meet either the interests ofrehabilitation or the requirements of deterrence. Nor does it meet the need to maintain public confidence in the law and its administration by the courts. The respondent has an extensive record of property- related and other offenses, including failures to comply with the processes of the law and the orders of the courts. These latest offenses demonstrate, first, that he has profited little from earlier dispositions and, second, that he has taken to committing increasingly serious crimes. The weight of the law has now to fall on him more heavily if it is going to achieve its objectives. The appeal will therefore be allowed to the extentsought by the Crown. The two terms of one year each willnot only be served consecutively, the one to follow theother, but consecutive to the term earlier imposed. In theresult, the respondent will have to serve out the timeremaining in respect of the earlier disposition, then servetwo more years in secure custody in consequence of thesearmed robberies.

A young offender was sentenced to 1 year closed custody on each of 2 armed robberies, the sentences to be consecutive to each other, but both being concurrent to the remainder of a sentence of 2 years closed custody which was already being served with respect to previous unrelated convictions when the accused escaped and committed the robberies. 18 months of the previous sentence remained to be served with the result that the total time in custody would only be increased by 6 months as a result of the 2 robbery convictions. The Crown appealed. HELD: Appeal allowed. The sentence neither reflected the seriousness of the offences nor provided adequate deterrence. The 2 new sentences totalling 2 years were made consecutive to the remaining term of 18 months as well as to each other.

1994canlii4661.txt

J. 1989 S.H. No. 67911 IN THE SUPREME COURT OF NOVA SCOTIATRIAL DIVISION BETWEEN: CHARLES TAYLOR and SEARS CANADA INC., body corporate Defendant HEARD: At Halifax, Nova Scotia, before the Honourable Madam Justice Elizabeth Roscoe, Supreme Court of Nova Scotia, Trial Division, on December and 6, 1989. DECISION: January 29, 1990 COUNSEL: Robert Murrant, Q.C., for the plaintiff; Thomas P. Donovan, for the defendant. ROSCOE, J. This is an action for damages for wrongful dismissal by the plaintiff, Charles Taylor, against the defendant, Sears Canada Inc.. Mr. Taylor, who is 53 years old, was employed by Sears as driver and driver's helper. He began his employment with Sears in September, 1954 and worked there until May, 1963 when he left on his own accord. He resumed his employment with Sears in May, 1969 and continued until December 5, 1988 when he was dismissed without notice. His continuous service with Sears was almost 20 years and his total period of employment was 28 years. The defendant operates large retail department store and catalogue sales business in Halifax. As driver or driver's helper, the plaintiff's responsibilities included delivery of merchandise and pick up of returned merchandise. Each day of the week he travelled different route. At the time of his dismissal, he and another employee, Mr. Hartlen, were operating large goods delivery truck in the metropolitan Halifax area. After loading their truck each morning and planning their route for the day, they were to deliver all of the merchandise and, in some cases, unpack it for the customer. The goods they were delivering were, for the most part, large pieces of furniture and appliances. It was also necessary to pick up goods that were being returned or exchanged by the customers and return them to the Sears warehouse. At the end of the day, it was necessary for them to account for their receipts and items that were not able to be delivered because the customer was not at home. The regular hours of work were 7:45 a.m. to 3:45 p.m. After 3:45 p.m., the drivers and helpers were paid time and half for overtime. Each driver and helper was entitled to fifteen minute break in the morning and forty‑five minute break for lunch. On December 5, 1988 the defendant dismissed the plaintiff from his employment for his "disregard of company policy related to hours of work and overtime". The defendant acknowledged that the plaintiff had been good employee for most of his time with the company and admitted that many Sears customers, over the years, had commented favourably about Mr. Taylor. The parties also agree that Mr. Taylor was, in fact, dismissed from his employment without notice, and that he was employed for an indefinite term. The issue, therefore, is whether or not the defendant was justified in dismissing the plaintiff. With respect to the burden of proof, the onus is upon the defendant to prove, on the balance of probabilities, that there was just cause for the dismissal of the plaintiff. It is apparent, from the testimony of Mr. Taylor and three other Sears drivers who testified on his behalf, that it was the practice of the drivers and helpers to arrive at the Sears warehouse at approximately 7:15 a.m. to 7:30 a.m. each morning. They indicated that they began working at that time, even though they were not paid until 7:45 a.m. After the drivers had their trucks loaded, they would leave Sears at approximately 9:00 a.m. and then all go to the same nearby restaurant for their morning break. The drivers admitted that this break was often longer than the allotted fifteen minutes, as most of them would have breakfast at that point. This practice, of all of the drivers meeting at the same restaurant for breakfast, was long standing and was something that the drivers' supervisors had periodically, through the years, tried to discourage. With respect to Mr. Taylor, he and his partner would, later in the day, have their lunch break, which he admitted sometimes extended beyond forty‑five minutes. If the deliveries were not completed by 3:45 p.m., the drivers were pre‑authorized to work overtime, and from 3:45 p.m. on were paid at the rate of one and one half times their hourly wage. The defendant claims that, by taking longer than authorized break in the morning and again at lunch time, the plaintiff, on those days when he claimed overtime, was unjustified in claiming that portion of the overtime which resulted from unauthorized breaks. The plaintiff submits that the overtime was justified, since he began work earlier than required each morning and he and his partner, Mr. Hartlen, worked at faster rate than required and, therefore, made up for any additional time spent on breaks. The history of the disciplinary process, involving the plaintiff, starts in March, 1986. Until that time, the plaintiff apparently had excellent periodic reviews with his superiors. On March 14, 1986 Mr. Taylor was disciplined by his supervisor for having left his truck parked on Main Avenue in Fairview for one hour and forty‑five minutes while he was having lunch at the Red Fox Beveridge Room few miles away. The record of the interview indicates that Mr. Taylor was advised that his lunch period was to be only forty‑five minutes and that it must be adhered to at all times. Under suggested action to be taken, the record of the interview indicates: "Adhere to lunch and break schedules. Do not stray from assigned delivery routes. Truck to be in sight of or in safe leave area at all times, properly secured. To be reviewed in 30 days. Repeat could lead to serious action or possible suspension." At his regular performance review in April, 1986, the manager noted that Mr. Taylor "finds it very difficult to accept change and can be very vocal and obnoxious in his opinions." The next time the break and lunch periods became an issue was in August, 1988 when all of the drivers and helpers were called to meeting with their supervisors with respect to this problem. The drivers and helpers were told not to congregate at the same restaurant for their morning break and to adhere to the rules regarding fifteen minute break in the morning and forty‑five minute break for lunch. They were told that their trucks would be under surveillance and disciplinary actions would be taken against those drivers who failed to abide by company policy with respect to breaks. In September, 1988, Mr. Taylor was the subject of corrective interview by his supervisor for failure to abide by the policy with respect to breaks. The record of that interview indicates that the following was discussed: "The abuse of personal break time at the expense of delivery efficiency, to the amount of an observed and recorded three hrs three min. over two week surveillance period, in which the employees total overtime amounted to three hours fifteen min. The level of abuse recorded, and the accompanying lack of concern regarding it, and the overtime directly generated by it, indicated somewhat of breach of faith on the part of this senior employee, and find this personally as well as professionally disappointing, since this attitude adversely affects not only the dept. financially, but service to customers as well." Under suggested action to be taken, the record of the interview indicates: “Ongoing random surveillance to be carried out to ensure employee's compliance with company established guidlines for coffee lunch breaks and performance will be reviewed on monthly basis for next months. Positive compliance with company requirements is necessary to ensure no further corrective action. Although the record of the corrective interview does not say so, the management personnel who attended the meeting, Mr. Corscadden, the metro delivery manager, and Mr. Hubley, the distribution supervisor, both testified that they told the plaintiff if he did not correct his behaviour, possible termination would be recommended. Mr. Taylor, on the other hand, although agreeing that he had breached the break policy prior to this corrective interview in September, did not acknowledge, at the trial, that he was advised that possible termination could result from further abuse. However, at his discovery examination, the plaintiff did admit that possible dismissal was discussed at the corrective interview in September. Following the corrective interview in September, 1988, continued random surveillance of the delivery personnel was undertaken by Sears. On November 24, 1988, Mr. Taylor and his partner, Mr. Hartlen, were kept under surveillance for their entire working day by Mr. Rick Irving, an off‑duty policeman hired by Sears. Mr. Taylor and Mr. Hartlen took twenty‑six minute break at restaurant in Halifax in the morning, after loading their truck. Their route that day took them to Hubbards, West Dover, Glen Margaret, Seabright, Tantallon and other communities on the St. Margaret's Bay Road. They took thirty‑six minute lunch break at take‑out restaurant in Glen Haven, so their total break time exceeded the limit by two minutes. Then, at 4:31 p.m. Mr. Taylor and Mr. Hartlen stopped at the Seabreeze Inn in Queensland and took case of beer into the Inn. They stayed there for forty minutes and returned to Sears at 5:50 p.m. Mr. Taylor and Mr. Hartlen both claimed two and one‑half hours of overtime on that day, of which forty‑two minutes was obviously unjustified. Mr. Taylor, while testifying, admitted that portion of the overtime claimed that day was unjustified, however, he indicated that he and his partner earned the additional break at the Seabreeze by working faster earlier in the day and by beginning earlier than was required that morning. Mr. Hubley and Mr. Corscadden, decided to recommend that Mr. Taylor's employment be terminated after receiving the information about the November 24th surveillance report. However, when they approached Mr. Giffin, the area personnel manager of Sears, Mr. Giffin indicated that further surveillance should be undertaken. On December 1, 1988, while on the Hubbards route, Mr. Taylor and Mr. Hartlen were, again, subject to surveillance. On that day, Mr. Taylor and Mr. Hartlen took fifteen minute break in the morning before heading out of the city. Later in the morning, the surveillance team stopped following the delivery truck because they were afraid that they had been seen by the occupants. They did not observe the length of the lunch break that day. The surveillance team, which consisted of Mr. Irving, Ms. Day, Sears employee from the Dartmouth store, and Mr. Singer, the resource protection manager, proceeded to spot near the Seabreeze Inn in Queensland and waited for the plaintiff's truck to drive by. Apparently, the truck approached the Seabreeze Inn from another direction and they did not actually see it arrive there. However, at 3:35 p.m., they saw that the truck was parked at the Seabreeze. Ms. Day entered the Seabreeze and found the plaintiff and Mr. Hartlen visiting friend of theirs and consuming beer. When Mr. Taylor and his partner left the Seabreeze Inn at approximately 4:30 p.m., they were apprehended by Mr. Singer and told to leave the truck there. They were driven back to Halifax in Mr. Singer's car. Mr. Hartlen and Mr. Taylor were suspended on December 1st, pending further investigation of the incident. It was determined later that Mr. Taylor and Mr. Hartlen still had two deliveries to make that day when they had stopped at the Seabreeze Inn. In written statement given upon their return to Sears on December 1st, Mr. Taylor and Mr. Hartlen indicated they had taken twenty minute coffee break in the morning and twenty‑five minute lunch break at noon. They said they stopped at the Seabreeze Inn at 3:30 p.m. and each had two bottles of beer while they played crib with friend. Mr. Giffin testified that, upon receiving the information about the surveillance on December 1, 1988, he consulted with personnel officials in Toronto and the decision was made to terminate employment of the plaintiff and Mr. Hartlen. Although Mr. Giffin said he and the people in Toronto only took into account the interview of March, 1986, the group meeting in August, 1988, the corrective interview in September, 1988 and the observed events of November 24th and December 1, 1988, it was apparent that other incorrect information had been sent to the managers in Toronto. The incorrect information included report that indicated Mr. Taylor had been placed under surveillance because of possible theft from the truck and another report that indicated that Mr. Taylor had been on the truck with Mr. Hartlen on November 17, 1988 when an unauthorized stop of more than one hour was made at the Seabreeze Inn and unjustified overtime of one and one half hours had been claimed. Mr. Taylor was not at work, however, on November 17th and that report was, therefore, clearly wrong. Mr. Giffin testified that he and the people in Toronto knew that report was wrong and they disregarded it. While testifying, Mr. Taylor admitted that he had broken the rules by making the stops at the Seabreeze Inn and that he and his partner regularly stopped at the Seabreeze during their Hubbards route. He also agreed that some of the overtime claims he made, on the days he had the Hubbards route, were as result of stops at the Seabreeze Inn and were, therefore, unjustified. However, he did say that he thought it was fair that he be allowed to take longer breaks while on the Hubbards run because of the hard work involved and the speed at which he and his partner made the deliveries. However, he did not make any comment of that nature to his supervisors on either December 1st or at subsequent meeting with respect to his termination. The sole issue, therefore, is whether or not the defendant was justified in dismissing the plaintiff for his failure to abide by company policy with respect to breaks and overtime. The defendant submits that case law establishes that employers may summarily discharge an employee for breach of company rules. The defendant refers to Cardenas v. Canada Dry Ltd. (1985), 10 C.C.E.L. 1, where Whealy, D.C.J. said at page 7: "In my view, this was clearly case of termination for cause. The defendant company has shown great deal of patience, had spent time and effort in warning the plaintiff about the concerns of the employer, urging the plaintiff to change his ways, on two occasions the defendant had warned the plaintiff that his job was on the line should he not improve, and yet the history of tardiness and reporting for work, absenteeism for various causes, none of which should be considered misconduct, together with the repetitive accident record combine in my view, to demonstrate on overwhelming case of reluctant employer terminating an unreformable employee for cause." similar approach was applied in Kerley v. Iron Ore Company of Canada (1980), 30 Nfld. P.E.I.R. 293. In that case, the plaintiff had breached the employer's rule which stated that if worker missed three shifts without leave, termination was automatic. Noel, J. found that the defendant's requirements were reasonable and had been made known to the plaintiff and, therefore, his breach of the rule was willful disobedience and his dismissal, without notice, was justified. Breach of the employer's policies was also considered in Meaney v. Agnes Pratt Home (1989), 1989 CanLII 4847 (NL SC), 74 Nfld. P.E.I.R. 18, where Steele, J. said at page 26: "Breach of rules or company policies can also be cause for discharge. As mentioned by Levitt at page 103, generallyspeaking companies must establish the following factors in order for a breach of company rule to constitute cause for discharge:1. The rules must be distributed;2. The rules must be known by the employees;3. The rules must be consistently enforced by the company;4. The employees must be warned that they will be terminated if a rule is breached; and5. The rules must be reasonable." The text referred to by Steele, J., The Law of Dismissal in Canada, by Howard A. Levitt (1985), lists as well, two additional factors in order for breach of company rule to constitute just cause (p.104): "6. The implications of breaking the rules in question are sufficiently serious to justify termination; and7. Whether a reasonable excuse exists." will deal with each of these factors in relation to this case. 1. Were the rules distributed? Mr. Taylor and the other drivers who testified at the trial indicated that they had never received written copy of the policies with respect to breaks and overtime. Both Mr. Taylor and Mr. Hartlen had asked to see the policy but had never been provided with copy. At the trial, the plaintiff introduced, as exhibit 12, copy of booklet entitled Welcome to Sears dated December, 1983. In the opening pages of the booklet, it says its purpose is to provide new employees: "with some background on the history and organization of our Company, and also to acquaint you with our personnel philosophy, policies and benefits." On the page dealing with employee hours (page 32), it indicates: "Full Time employees who work the normal 7½ hour day are entitled to one 15‑minute relief period in each half of the working day ... You are paid for your relief periods of course, and are not required to make up the time." Following that there is weekly schedule of hours of work, but it is left blank, to be filled in apparently by the supervisor when new employee is hired. In addition, under employee hours, it says: "The normal length of meal period is There are exceptions to this for employees who work less than the normal work day. If there is any exception in your case, your manager will discuss it with you." On page 15, the booklet deals with overtime and supper allowance and says: "Overtime at the rate of time and one half is paid for time worked in excess of the normal work day as established in the unit. This overtime is paid whether the time worked is prior to the scheduled starting time or after the scheduled leaving time and is calculated in units of 15 minutes. Overtime work must be authorized in advance. Employees who have to work more than hour beyond their normally scheduled leaving time receive supper break and are paid supper allowance of $3.00." None of the drivers, who testified at the trial, had seen this booklet prior to the trial. Mr. Giffin indicated that the booklet did not apply to delivery personnel since their hours of work were clearly established to be eight hours day with one hour in breaks. Delivery personnel, he indicated, were well aware that they were not entitled to be paid for work prior to the official starting time of 7:45 a.m. but were entitled to leave work prior to 3:45 p.m. if their deliveries were completed. Neither Mr. Giffin nor the other supervisors were able to produce written policy with respect to the hours of work and overtime for delivery personnel. With respect to this first factor, find that the rules, in this case, were not distributed, in writing, to Sears' drivers. Although the rules with respect to lunch and overtime may not have been generally distributed, in writing, to all employees, Mr. Taylor had copy of his 1986 recorded interview which indicated lunch period was forty‑five minutes and must be adhered to at all times. He had attended the special meeting of all drivers in August, 1988 where breaks and overtime were specifically discussed, and at his September, 1988 corrective interview, these rules were again discussed with him personally by his supervisor. 2. Were the rules known by the employees? The evidence clearly establishes that Mr. Taylor and the other drivers all knew that their hours of work were 7:45 a.m. to 3:45 p.m., that they would not be paid for arriving at work early, that they were entitled to fifteen minute coffee break and forty‑five minute lunch break, that they would be paid time and half for work performed after 3:45 p.m. and, if they worked beyond 4:45 p.m., they would be entitled to supper allowance. All of the drivers also knew that it was not necessary for them to seek authorization for overtime. They were, in fact, preauthorized to work beyond 3:45 p.m. 3. Were the rules consistantly enforced by the company? It is apparent that Mr. Taylor and the other drivers had been abusing their break time for several years and the company, apparently, did nothing about it. There was no evidence, though, indicating that management, in fact, knew of the long term abuse of break times. Beginning with 1986, however, it is clear that the defendant was concerned with abuse of rules with respect to breaks, which is evidenced by the plaintiff's recorded interview in 1986. Documentation with respect to the driver's helper who was with Mr. Taylor when he took his extended lunch break at the Red Fox Tavern, indicates that he too was disciplined as result. In August, 1988, all of the drivers and helpers were summoned to meeting where it was explained that longer than permitted breaks and unjustified overtime would no longer be tolerated. Subsequent to that meeting, in addition to the corrective interviews held with Mr. Taylor and Mr. Hartlen, many of the other drivers and helpers were spoken to with respect to breaches of the policy. Mr. Taylor admitted that since 1988, the company was, in fact, consistently enforcing its rules with respect to breaks and overtime. The drivers were all well aware that continued surveillance would be taking place after the August meeting, the purpose of which was obviously to enforce the company rules. 4. Were the employees warned that they would be terminated if the rules were breached? The plaintiff submits that he was not given sufficient warning that termination would result if he was found to have breached the rules again. There is no doubt that the record of the corrective interview of September, 1988 does not refer to dismissal or termination. It only refers to "further corrective action". This is in contrast to Mr. Hartlen's corrective interview in September, which notes failure to comply with company requirements would result in "further corrective action and possible termination". Mr. Hartlen, however, testified that that sentence was added after he had signed the record of corrective interview. Mr. Taylor said, in his direct examination, he didn't really know what his supervisors meant by "corrective action" but he didn't feel threatened with dismissal. He thought that, after so many years of service, he would be entitled "to few errors in judgment". He said that, as result of the corrective interview, he knew that their coffee breaks were being observed so they "curtailed them to quite degree". However, on cross‑examination, Mr. Taylor was quite evasive, saying at first he didn't recall the corrective interview in September, but admitted that it obviously took place. He admitted that everyone was warned at the August meeting that further breaches of the policies would not be tolerated and that he was told at the September interview that "further breaches would not be tolerated". He then said that he did not recall the word "termination" being used, however, as indicated above, at his discovery, Mr. Taylor did admit that the word "dismissal" was used at the corrective interview in September. The question asked at the discovery was "Now, as result of that interview, what was your understanding as to what would occur if there was further abuse of break and lunch periods?" Answer "Possible dismissal, suppose." That answer is consistant with what Mr. Corscadden and Mr. Hubley said was discussed at the September interview. With respect to this factor, find that the evidence supports the conclusion that the employees in general, and Mr. Taylor specifically, were warned that future breaches of the breaks and overtime policy could lead to termination of employment. 5. Were the rules reasonable? The plaintiff submits that the policy, which denied an employee more than one hour total in breaks over ten to eleven hour day, is not reasonable. Plaintiff's counsel refer to November 24th as an example of ten to eleven hour day. However, the first assumption they make is that Mr. Taylor began work at 7:15 a.m. that day, of which there was no evidence. But even if he had, it was clearly established, at the trial, that beginning prior to 7:45 a.m. was not encouraged or requested by the employer. An additional forty‑two minutes of that day was due to the unauthorized stop at the Seabreeze Inn. Had Mr. Taylor returned to Sears after completing his deliveries, he would have presumably arrived back at Sears at approximately 5:10 p.m. Given that the hours of work were approved and requested by the drivers, that an unpaid supper break was allowed, if requested, and that the employee was paid at higher rate for overtime, do not find that the rules with respect to breaks and overtime were unreasonable. 6. Were the implications of breaking the rules in question sufficiently serious to justify termination? Mr. Giffin testified that since the delivery personnel were not under direct supervision during their working hours, the company had to depend on their total honesty and integrity with respect to claiming overtime. He also testified that Sears operated on two percent profit margin and, therefore, if an employee claimed $20.00 of overtime, it was necessary for Sears to have $1,000.00 in sales to recover the overtime. He also testified that Sears has 50,000 employees in Canada, and if every employee disregarded the overtime policies, the impact on the compay would be devastating. Mr. Taylor's counsel, in their submissions, attempt to color the transgressions of Mr. Taylor as insignificant, being few minutes here and few minutes there. However, given the admissions of Mr. Taylor, that he stopped in at the Seabreeze Inn on most Thursdays, when he did the Hubbards run and claimed overtime for the time he spent there and given the fact that the company was treating the matter seriously, in light of the meeting and corrective interview, find that the implication of breaking the rules was sufficiently serious to justify termination. agree with the defendant's categorization of the breaches, at least those of November 24th and December 1, 1988, as being deliberate, dishonest and tantamount to theft from the employer. 7. Does reasonable excuse exist? Mr. Taylor did not present any excuse to his employer at the time of his corrective interview in September nor at his termination interview. The excuse presented at the trial, though, is that he was entitled to longer break because he had been working faster than required. Alternatively, his counsel has suggested, by using the Welcome to Sears booklet, that he was entitled to paid supper break and that's what he was doing when he was at the Seabreeze Inn on November 24th and December 1st. There was no evidence, however, presented by the plaintiff that, in fact, on any of the relevant dates, the additional breaks he took were for his meal. None of the drivers suggested that they thought they could be paid time and half while taking supper break. The plaintiff knew, or ought to have known, that it was not open to him to unilaterally determine when additional breaks were justified on the basis of productivity and, therefore, find that no reasonable excuse has been offerred for the breach of policies. Of the seven factors listed above, I find that the defendant company has satisfied the onus with respect to six of the factors. do not find that the failure to distribute the rules, in writing, in this particular case, is crucial. There is no question that all of the drivers knew the hours of work and the overtime policies and, in fact, Mr. Taylor and the others attended special meeting to draw the policies to their attention in August, 1988. Mr. Taylor and the other drivers were also told, at that meeting, that further breaches of the policies would not be tolerated. Unfortunately, Mr. Taylor chose not to abide by the policies of his employer. He breached those policies in August, 1988 and as result, was disciplined by the corrective interview in September. He was advised that further surveillance would take place and on both days that he was under surveillance, he took longer than authorized breaks, consumed alcohol during the work day and submitted claims for overtime which were unjustified and basically dishonest. I find that the defendant has proven that the plaintiff's dismissal was justified and would, therefore, dismiss the plaintiff's claim will receive submissions from counsel with respect to costs, if requested. J. HALIFAX, NOVA SCOTIA January 29th, 1990 1989 S.H. No. 67911 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: CHARLES TAYLOR and SEARS CANADA INC., body corporate

This was an action for damages for wrongful dismissal. The plaintiff had worked for 28 years for the defendant as a driver making deliveries to customers. The defendant dismissed the plaintiff for 'disregard of company policy related to hours of work and overtime'. The plaintiff had taken longer coffee and lunch breaks than were allowed, and had taken unauthorized breaks for which he had then been paid overtime by the defendant. For the defendant, that the dismissal was justified. The court considered seven factors in assessing whether the defendant had discharged the onus upon it to prove on the balance of probabilities that there was just cause for the dismissal including whether the rules of the company had been distributed to the plaintiff, if the plaintiff was aware of the rules, whether the rules were consistently enforced, whether the plaintiff was properly warned of the consequences of breaching the rules, if the rules were reasonable, whether the breaches were sufficiently serious to justify termination, and whether a reasonable excuse existed for breaching the rules.

b_1990canlii4176.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: MacQuarrie’s Drugs Ltd. v. Salsman, 2012 NSSC 139 Date: 20120329 Docket: HfxLC388365 Registry: Halifax Between: MacQuarrie’s Drugs Limited v. Larry Salsman Respondent LIBRARY HEADING Judge: The Honourable Justice Frank Edwards Heard: March 29, 2012 in Halifax, Nova Scotia Written Release of April 5, 2012 Oral Decision: Subject: Motion for Interim Injunction CPR 41.04 Facts: 30 year employee of Plaintiff Company resigns to open competing business. Had signed non compete agreement in 1995. Issue: Whether interim injunction should issue in advance of motion for interlocutory injunction. Result: Interim injunction issued. Factors in CPR 41.04 satisfied. In particular, an urgency existed in the sense that the Defendant had resigned only weeks earlier and the opening of the new business was imminent. The Plaintiff had not had sufficient time to gather all the evidence it wished to present on an interlocutory motion. Considering all the circumstances, it was just to issue the interim injunction. Plaintiff’s motion was not frivolous or vexatious. There was a serious issue to be tried. The Plaintiff’s business risked irreparable harm. The balance of convenience favored the Plaintiff. Cases Noted: None previously reported on 41.04 THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF NOVA SCOTIA Citation: MacQuarrie’s Drugs Ltd. v. Salsman, 2012 NSSC 139 Date: 20120329 Docket:HfxLC388365 Registry: Halifax Between: MacQuarrie’s Drugs Limited v. Larry Salsman Defendant Judge: The Honourable Justice Frank Edwards Heard: March 29, 2012, in Halifax, Nova Scotia Written Decision: April 5, 2012 Counsel: Charles Thompson, for the plaintiff Rebecca Saturley, for the defendant [1] This is a motion for an interim injunction pursuant to CPR 41.04. Background: [2] The Plaintiff operates the only drug store in the semi-rural community of Berwick. The Defendant, Larry Salsman, was employed by the Plaintiff and its successors from February 1, 1978 until March 5, 2012. Salsman variously acted as General Manager, Dispensary Manager and staff Pharmacist for the Plaintiff. In 1995, Salsman signed non-compete agreement wherein he agreed not to engage in the drug store business within 10 miles of the Plaintiff’s business for years after the end of his employment. [3] On March 5, 2012, Salsman resigned with the intention of opening of new drug store down the street from the Plaintiff. Other key employees of the Plaintiff have indicated their intention to resign from the Plaintiff and work with Salsman. The opening of the new business is contemplated for early April, 2012. [4] I am going to grant the Interim Injunction. [5] Ms. Saturley’s comments are well taken. do have some concerns about the year duration of the non-compete clause and with the chances of the Plaintiff ultimately succeeding. When look at s. 41.04 and the implications of granting an Interim Injunction at this time, however, have decided that it is the appropriate and just thing to do in the circumstances. Section 41.04 states party who files an undertaking as required by Rule 41.06 (and that has been done) may make motion for an Interim Injunction to Judge who, being satisfied with all of the following, may grant the motion: 41.04 (2) (a) the party claims an injunction...as final remedy in the proceeding, or it is in the interests of the justice that an injunction...be in place before determination of the claims in the proceeding; b) the party has moved, or will move, for an interlocutory injunction or interlocutory receivership and is proceeding without delay. c) an urgency exists and it cannot await the determination of the motion for an interlocutory injunction or interlocutory receivership, and d) considering all of the circumstances, it is just to issue an order for an interim injunction or interim receivership. [6] The new Rules differentiate between Interim and Interlocutory Injunctions. This is one of the circumstances which was contemplated when the new Rule was put in place. The Plaintiff has only become aware of the threat to its business within the last few weeks. The new business will open within weeks. The Plaintiff has not had sufficient time to prepare for full Interlocutory Hearing. [7] The seriousness of the matter for the parties involved and for some persons who are not formally parties, could not in business sense be more grave. suspect that the determination on the hearing of the Interlocutory Injunction has high potential to be the ultimate determination in the case. It is with that in mind, and in that context, that have approached the issue of whether should grant the Interim Injunction here today. [8] On the one hand, we have an existing business run by the Plaintiff and on the other, we have the business contemplated by Mr. Salsman and his business associates. This is Thursday the new business is scheduled to open either next week or the week after. had thought from reading the motion, that it was scheduled for next Monday or Tuesday, but apparently, the precise date has not been settled. In any event, this matter has just arisen in the last few weeks in the sense that Mr. Salsman has resigned effective March 5th, 2012. Mr. Salsman was long-serving employee and at times the manager of the Plaintiff’s company. As well, Mr. Salsman has obviously had access to the confidential information of the pharmacy, to and including the confidential information pertaining to the customers of the pharmacy. [9] In addition, other key staff members intend to leave the Plaintiff company to join the new company. take it as matter of common sense, and not speculation, that the opening of the new business is likely to have very profound negative effect upon the operation of the Plaintiff’s company. [10] am of the view that the hearing of the Interlocutory Injunction should be full and consider all of the evidence. By that, mean, not only what we have here today, but also the cross-examinations of the various affiants, as well as the information which Mr. Thompson stated that he required more time to access and submit. That included more information re the circumstances of the signing of the 1995 agreement, more evidence on the extent of the relationship between Mr. Salsman and the Plaintiff’s customers, the number of clients involved and more evidence on the impact of the opening of the Defendant’s business. [11] The impending and imminent opening of the new business satisfies the requirement that of 41.04 2 (c) that urgency exists and cannot await the determination of the motion for an Interlocutory Injunction. It is obvious that once that new business opens, the effect upon the Plaintiff company will be profound and there is really no going back. [12] Ultimately come to Rule 41.04 2(d): considering all of the circumstances is it just to issue an order for an Interim Injunction. [13] In determining whether or not it is just, look at the usual criteria which are put forward on an injunction application. Here, if were considering this as an Interlocutory matter, might well consider the more demanding standard that the Plaintiff would have to put forward strong prima facia case. (I will not compromise the Justice who will ultimately hear the Interlocutory motion by giving an opinion as to whether or not that should be so). [14] At this stage, am satisfied that have only to consider whether there is serious issue to be tried. Despite my concern about the ultimate viability of the five year non-compete, I am satisfied, when I look at the circumstances by way of overview, that this is not a frivolous or vexatious application. The Plaintiff is facing serious threat to its business and it has reasonable argument that this Court should examine the situation and perhaps intervene. [15] Secondly, on the irreparable harm issue, it is my view that there is a high potential for irreparable harm to the Plaintiff company - the loss of customers, or market share, though difficult to quantify, is real and is the type of harm contemplated by this branch of the test. [16] Again, I do not think that we get into the realm of speculation when one considers a small community like Berwick. have no evidence on the size of Berwick, but it appears to be common ground that it is semi-rural community with one drug store. When another drug store opens down the street, common sense would dictate that the new store is obviously going to have huge effect on the business of the existing drug store. That would be the case even if unrelated third parties were opening the new business. But here the new business is essentially going to be run by 30 plus year former employee of the Plaintiff company. The potential negative consequences for the Plaintiff company are obvious. [17] That takes me to the third branch of the test, the balance of convenience. Despite the able submission by Ms. Saturley about the consequences of losing time for a small business in Nova Scotia, the bottom line is that the Defendant is facing only the postponement of the opening for a few weeks. The stakes are much higher for the Plaintiff’s existing business. The balance of convenience, obviously favours the status quo. [18] The Interim Injunction will issue. The Interlocutory Injunction motion will be heard in Halifax before Justice LeBlanc on April 24, 2012.

The applicant is the only drug store in a rural community. The respondent worked there for 30 years, in various positions. He signed a 5-year, 10 mile non-competition clause in 1995. He quit in early March with the intention of opening a new drug store down the street in early April. Other key staff members intended to quit and work in the new store. The applicant moved for an interim injunction to prevent the respondent from opening his store pending the hearing of their motion for an interlocutory injunction. Interim injunction granted. The new Civil Procedure Rules (2008) distinguish between interim and interlocutory injunctions. This is one of the circumstances which was contemplated when the new Rule 41.04 was enacted. Urgency exists and the applicant can't wait. While the non-competition clause may well not survive a challenge at the full hearing of the interlocutory injunction motion, all the applicant needs to show is that there is a serious issue to be tried. There is. This isn't a frivolous or vexatious application. There's a high potential for the applicant to suffer irreparable harm (e.g. the loss of customers, market share) especially given that this is a small community. An interim injunction will only result in a delay of a few weeks. The interlocutory injunction is set to heard at the end of April. The stakes are higher for the applicant than they are for the respondent.

d_2012nssc139.txt

J. Date: 19981202 Docket: C.A.C. 148131 NOVA SCOTIA COURT OF APPEAL Freeman, Bateman and Cromwell, JJ BETWEEN: HER MAJESTY THE QUEEN, as represented by the Attorney General of Nova Scotia and SOBEY'S INCORPORATED, body corporate Respondent James A. Gumpert, Q.C. for the Appellant William L. Ryan, Q.C. and Chantal M. Richard for the Respondent Appeal Heard: December 2, 1998 Judgment Delivered: December 2, 1998 THE COURT: Appeal allowed per oral reasons for judgment of Cromwell, J.A.Freeman and Bateman, JJ.A. concurring CROMWELL, J.A.: (Orally) Sobey's Incorporated was acquitted by Cole, Prov. Ct. J. on a charge that it, on the 3rd of September, 1997, sold tobacco or a tobacco product to a person under the age of 19 years contrary to s. 5(1) of the Tobacco Access Act, S.N.S. 1993, c. 14. The actus reus of the offence was clearly proved. The issues at trial, and on this appeal, involve the constitutionality of the Act and the defence of due diligence. The trial judge found that the Tobacco Access Act was ultra vires the Legislature. He reasoned that federal legislation had "occupied the field" with the Tobacco Act, S.C. 1997, c. 13, that it "cannot stand side by side with the provincial legislation", and that the federal legislation therefore prevails. Having found the legislation under which the accused was charged to be unconstitutional, an acquittal was entered. The Crown appeals from that finding. The trial judge also indicated that, had he found the legislation to be constitutional, he would have entered conviction because he rejected the defence of due diligence advanced by the accused. It is apparent from the interchange between the Court and counsel for Sobey's at trial, to which the trial judge referred in his judgment, that he thought the relevant consideration was whether the employee who sold the tobacco product had been duly diligent rather than whether the accused, Sobey's, had been duly diligent. The trial judge said: The only way we have to make corporations accountable is through their employees, 'cause those are the servants and agents, and when acting in the scope of their authority, it seems to me that they are the corporation ..... Well, if you're right, the next time steal chocolate bar from Sobeys and I'm charged with theft, or anybody else for that matter, I'm gonna say my hand did it, didn't. I'll expect to be acquitted if buy your argument today ...... And I'm quite familiar with Sault Ste Marie. hear it every week, at least. Sobey's, by way of cross-appeal, challenges this aspect of the trial judge's findings. On the constitutional point, we are of the view that the trial judge erred in finding the provincial Statute unconstitutional. As submitted by the Crown, the proper method of analysis in this case has three steps. First, it is necessary to determine "the matter„, or the "pith and substance" of each of the federal and provincial laws. We are satisfied that the Province's Tobacco Access Act is legislation in relation to the health of young persons. As for the federal legislation, it has been assumed by both parties that it is in pith and substance criminal law as was decided in relation to its predecessor statute by majority of the Supreme Court of Canada in RJR-Macdonald Inc. v. Attorney General of Canada, 1995 CanLII 64 (SCC), [1995] S.C.R. 199; (1995), 127 D.L.R. (4t") 1. Assuming, without deciding that is the case, it is necessary to move to the second step of the analysis. The second step requires that the matter of each of the laws be assigned to one or more of the classes of subjects in respect of which the federal and provincial governments have legislative authority under the Constitution Act, 1867. The "matter" of the provincial Statute, the health of young persons, is within provincial legislative competence under section 92(16). As the Supreme Court of Canada noted in R. v. Morgentaler, 1993 CanLII 158 (SCC), [1993] S.C.R. 462; (1993), 1993 CanLII 74 (SCC), 85 C.C.C. (3d) 118 at 138 (C.C.C.), that section gives the provinces "...general jurisdiction over health matters within the province..." The matter of the federal Act is assumed to fall under s. 91 (27) setting out the power to legislate in relation to criminal law. The third step in the analysis is to determine whether there is conflict between the federal and the provincial laws. On this aspect of the analysis, we need only consider ss. and 12 of the Act. If there is conflict, the federal law prevails under the doctrine of paramountcy. The test for determining whether there is conflict was set out by the Supreme Court of Canada in Multiple Access v. McCutcheon, 1982 CanLII 55 (SCC), [1982] S.C.R. 161 and reiterated in Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), 1987 CanLII 72 (SCC), [1987] S.C.R. 59 and Irwin Toy Ltd. v. Attorney General (Quebec), 1989 CanLII 87 (SCC), [1989] S.C.R. 927. In Multiple Access, Dickson, J., as he then was, said at page 191: In principle, there would seem to be no good reasons to speak of paramountcy and preclusion except where there is actual conflict in operation as where one enactment says "yes" and the other says "no"; "the same citizens are being told to do inconsistent things"; compliance with one is defiance of the other. (emphasis added) There is no conflict here in this sense between the federal and provincial legislation. It follows that the two Acts can operate side by side and that the trial judge erred in finding the provincial Act unconstitutional. It is unfortunate that notice was not given by the accused of its intention to make the constitutional argument. Had it been, the trial judge would likely have had the advantage of being referred to the relevant authorities. Turning to the due diligence issue raised on the cross-appeal, the trial judge also erred in concluding that the onus on Sobey's was to show that its employee was duly diligent rather than that it was duly diligent. The law was stated by the Supreme Court of Canada in R. v. Corporation of City of Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] S.C. R. 1299; (1978), 40 C.C.C. (2d) 353 to which the trial judge referred. In that case, Dickson, J., as he then was, said at p. 1331 [S.C.R.]: Since the issue is whether the defendant is guilty of an offence, the doctrine of respondeat superior has no application. The due diligence which must be established is that of the accused alone. Where an employer is charged in respect of an act committed by an employee acting in the course of employment. the question will be whether the act took place without the accused's direction or approval... and whether the accused exercised all reasonable care by establishing_a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system. (emphasis added) In the result, the appeal is allowed, the judgment of the trial judge is set aside and the matter is remitted to a differently constituted Provincial Court for trial. Having given our view with respect to the point of law raised by way of cross­appeal, it is not necessary for us to make any order with respect to the cross­appeal. Cromwell, J.A. Concurred in: Freeman, J.A. Bateman, J.A. CANADA CASE NUMBER 763696 PROVINCE OF NOVA SCOTIA 1998 IN THE PROVINCIAL COURT HER MAJESTY THE QUEEN versus SOBEYS INCORPORATED #610 HEARD BEFORE: The Honourable Judge David E. Cole PLACE HEARD: Amherst, Nova Scotia DATE HEARD: 06 May 1998 CHARGE: THAT THEY, on or about the 3' day of September, 1997, at, or near 147 South Albion Street, Amherst, in the County of Cumberland, Province of Nova Scotia, did sell tobacco or tobacco product to person under the age of 19 years, contrary to section 5(1) of the Tobacco Access Act. COUNSEL: Mr. Bruce Baxter, for the Crown Mr. William Ryan, for the Defense C.A. No.148131 NOVA SCOTIA COURT OF APPEAL BETWEEN: HER MAJESTY THE QUEEN, as represented by the Attorney General of Nova Scotia and SOBEY'S INCORPORATED, body Respondent REASONS FOR JUDGEMENT BY: CROMWELL, J.A. (Orally)

The respondent grocery store was charged with selling tobacco to a person under the age of 19, contrary to s. 5(1) of the Tobacco Access Act. The actus reus of the act was clearly proved at trial. The trial judge acquitted as a result of his finding that the legislation was ultra vires the Province. He reasoned that federal legislation had 'occupied the field' with the Tobacco Act, that the federal legislation cannot stand side by side with the provincial legislation, and that the federal legislation therefore prevails. The trial judge further commented that, had the Act been constitutional, he would have convicted because he did not accept the accused's defence of due diligence. The Crown appealed, and the accused cross-appealed. Allowing the appeal and remitting the matter to Provincial Court for trial, that the Tobacco Access Act is legislation in relation to matters of health, and therefore within provincial jurisdiction. It does not conflict with the federal Tobacco Act. The trial judge therefore erred in finding that the Tobacco Access Act was ultra vires. The trial judge also erred in law with respect to the defence of due diligence. The question is not, as the trial judge thought, whether the employee who sold the tobacco was duly diligent, but whether the accused, her employer, exercised all reasonable care by establishing a proper system to prevent the commission of the offence, and by taking all reasonable steps to ensure the effective operation of the system.

b_1998canlii971.txt

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Goreham, 2008 NSPC Date: January 31, 2008 Docket: 1697424 Registry: Yarmouth Between: Her Majesty the Queen v. Robert Terry Goreham Judge: The Honourable Judge James H. Burrill Heard: January 31, 2008, in Barrington, Nova Scotia Charge: 287(2) MVA Counsel: Jim Fyfe, for the Crown Philip Star, Q.C., for the Defence By the Court: [1] On August 9, 2006, Robert Terry Goreham was observed by police officers driving his all terrain vehicle (ATV) along Highway #3 in the community of Woods Harbour, Nova Scotia. At the time his driver’s license was revoked. These facts were agreed and the only issue at this trial is whether this makes the accused guilty of the offence of driving a motor vehicle on the highway while his license was revoked contrary to s.287(2) of the Motor Vehicle Act. [2] The Crown argues that because Mr. Goreham was driving motor vehicle on highway and his “driver’s license” was revoked he is guilty of the offence. [3] The Defence argues that it is not that simple. The defence position is that the words “motor vehicle” in Section 287(2) do not include an ATV and that even if those words did, the accused should be found not guilty because his license revocation is irrelevant since he could never have been licensed to drive an ATV on the highway. It is argued that since there is no nexus between his driving of the ATV and the revocation of his driver’s license he should be found not guilty of this offence. [4] The use of an ATV on public highways is clearly prohibited under the Motor Vehicle Act. Section 11 of the Act reads: S. 11 “The Department shall not register, and no person shall operate on highway......an all terrain vehicle.....” While note that section 12 of the Off-Highway Vehicles Act permits the operation of an ATV upon highway in very limited circumstances these provisions are not relevant to this case. Under the Motor Vehicle Act an individual driving motor vehicle upon highway must be properly licensed. Section 2(m) defines “driver’s license” as: S. 2(m) “”Driver’s license” means license issued under this act to drive motor vehicle upon the highway.” Section 64 reads: S.64 “Subject to Section 65 and Subsection (6) of Section 75, no person shall operate any motor vehicle upon highway in the Province unless such person has valid driver’s license under the provisions of this Act for the type or class of vehicle being driven.” Each licence is issued for type or class of vehicle, but since an ATV is prohibited vehicle under Section 11 there is no license that can be issued to drive one on the highway. [5] The defence argues that the words “motor vehicle” in section 287(2) should not be read to include an ATV or other vehicles prohibited from operation upon the highway by section 11. Section 287(2) reads: s. 287 (2) “A person shall not drive motor vehicle while his license or privilege of obtaining license is cancelled, revoked or suspended under this Act.” The words “motor vehicle” are defined in section 2(cd): s. 2(cd) “”motor vehicle” means vehicle, as herein defined, which is propelled or driven otherwise than by muscular power” [6] Despite this simple definition of “motor vehicle” the defence argues that R. v. Boutilier, [2002] N.S.J. No. 389 (N.S.S.C.) is authority for the proposition that an ATV is not motor vehicle within the meaning of the Act. Boutilier is case where the accused was charged with driving motor vehicle without proper insurance. Section 230(1) makes it an offence for person to operate “motor vehicle registered or required to be registered under this Act” unless there was proper insurance on the vehicle. In Boutilier the accused was operating an ATV on portion of the highway (a sidewalk). He did not have insurance. The Crown in Boutilier argued that although section 11 of the Act prevented the Registrar from registering an ATV it was still vehicle that was “required to be registered” since it was being driven on highway. They argued that section 37 of the Act made it an offence to operate motor vehicle on the highway that was not registered. The Crown asked the court to find that even though section 11 prevented an ATV from being registered, if it was motor vehicle being driven on the highway it must still fall within the definition of “motor vehicle that was required to be registered”. [7] In rejecting that argument and upholding the Adjudicator’s decision at trial at paragraphs 24 25, LeBlanc J. said: “Although the Appellant contends that the interpretation or definition section of the Motor Vehicle Act permits the inclusion of all-terrain vehicles as motor vehicles by virtue of the fact that they are not operated simply by muscular power; clearly, s. 11(2) of the Interpretation Act reminds us that this might be possible interpretation unless different intention is expressed or the meaning of the interpretation or definition section or provision is inconsistent with the content or purpose of the enactment. Certainly, it is obvious that the all-terrain vehicle must be excluded from the definition of the motor vehicle as different intention is clearly expressed.” [8] In making this ruling LeBlanc J. was clearly not exempting ATV’s from the definition of motor vehicles in all provisions of the Motor Vehicle Act. He was dealing with section 230(1) and the phrase “motor vehicle registered or required to be registered under this Act.” He held that an ATV was not such motor vehicle. [9] Justice LeBlanc’s intention to not exempt ATV’s from all references to “motor vehicles” in the Act became clear when he said at paragraph 37: “It is my view that Mr. Boutilier could be charged with an offence of operating motor vehicle on the highway, or for speeding and would be liable for any damages arising in the event of an accident.” This statement appears consistent with the decision in Lutz v. Judgement Recovery (N.S.) Ltd., [1993] No. 326. This case dealt with the issue of whether the Judgement Recovery provisions of the Motor Vehicle Act applied to situation where the defendant had been driving an ATV. At paragraph of that decision Hall J. said: “It seems absurd to suggest that lawfully licensed driver operating properly licensed automobile or truck on highway would be liable for violations of the Motor Vehicle Act such as speeding or imprudent driving, while person operating an off-highway vehicle on highway could not be subject to the same obligations and be liable for the same penalties for such violations” [10] It seems apparent, therefore, that one must consider the context in which the words “motor vehicle” are used within the sections of the Motor Vehicle Act to determine whether the provision applies to the use of ATV’s or other prohibited vehicles. When the content, context and purpose of section 287(2) is considered find that the legislature intended for that subsection to prohibit the use of motor vehicles on the highway by those individuals who had their licences or privilege of obtaining licences to do so cancelled, suspended or revoked. Before one can be guilty of such an offence find that it must be proven that they were driving motor vehicle of type or class for which they could properly have been licensed to drive on the highway. In s.287(2) the words “motor vehicle” include only those types or classes of vehicles for which one can obtain license to drive it on the highway. [11] In this case Mr. Goreham could not have obtained a license to drive an ATV on the highway because it was a prohibited vehicle. It was vehicle of the wrong type or class to get license. Mr. Goreham is, therefore, not guilty of driving a motor vehicle while his license was revoked and the charge under s. 287(2) is dismissed. [12] hasten to add that this does not mean Mr. Goreham’s conduct was lawful. In fact, he would certainly have been guilty of driving prohibited vehicle on the highway under s. 11, but that is not the charge before the court.

The accused was charged with driving a motor vehicle while his licence was revoked when he was found operating an all terrain vehicle (ATV) on a highway. Accused found not guilty; the accused could not have obtained a licence to drive an ATV on the highway because it is a prohibited vehicle. Before one can be found guilty of this offence, it must be proven that they were driving a motor vehicle of a type or class for which they could have been properly licenced to drive on a highway.

b_2008nspc5.txt

R.D. LAING THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 102 Date: 20090908 Between: Docket: 1645 Her Majesty the Queen and Corrona C. Shorting Coram: Lane, Richards and Wilkinson JJ.A. Counsel: W. Dean Sinclair for the Crown Roger Kergoat for the Respondent Appeal: From: Q.B.J. No. 18 of 2008, J.C. of Saskatoon Heard: June 11, 2009 Disposition: Allowed Written Reasons: September 8, 2009 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Richards The Honourable Madam Justice Wilkinson [1] The respondent pled guilty to charge of manslaughter arising out of fatal injuries she inflicted on her seven-month-old daughter. On February 11, 2009, the sentencing judge awarded the respondent 26 months credit for 13 months in pre-trial custody and then imposed a sentence of two years less one day to be followed by two years probation. The Crown seeks leave to appeal the sentence imposed as demonstrably unfit. [2] The Crown contends the sentencing judge erred in his assessment of the gravity of the offence and the respondent’s moral culpability in it and failed to impose sentence which properly emphasized the principles of denunciation and deterrence. It argues the judge further erred by failing to give proper weight to the aggravating features of the case and by overemphasizing the significance of factors he found to be mitigating. Finally, the Crown contends the sentencing judge failed to apply the principle of parity, all of which resulted in demonstrably unfit sentence. I am satisfied the appeal should be allowed on the basis of this latter ground. [3] The essential facts are not in dispute. The respondent, 28-year-old Aboriginal woman, gave birth prematurely to the victim, Corona Genaille, on February 10, 2007. The respondent was heavy cocaine and marijuana user and has troubled history of abuse, addictions to alcohol and drugs and psychological problems. She grew up in unstable living conditions and was exposed to drug use, domestic abuse and sexual abuse. After the birth of the child she refused post-natal health services in order to conceal her drug use, and she avoided most contact with child welfare agencies. Her last contact with Social Services was on June 18, 2007, over three months before the incident giving rise to the charge. Corona was the respondent’s fourth child. At the time of the offence, the other children were one, four, and five years old and all suffered from developmental or health problems including autism and fetal alcohol syndrome. She was essentially the sole caregiver of the four children. The respondent drank alcohol and/or used drugs while pregnant with three of the children. [4] The respondent was living with Fabian Genaille since 2004 and he is the father of the two youngest children. Mr. Genaille abuses drugs and alcohol and works out of town often. He was not physically abusive but the relationship had deteriorated significantly. In previous relationship of eight years, she was severely and repeatedly physically assaulted. [5] On September 25, 2007, the respondent called her social worker at approximately 9:00 a.m. and said Corona was unresponsive. Two social workers came to the home, found the baby unconscious and called an ambulance. The baby was rushed to the hospital but never regained consciousness. When the baby was brought in, hospital staff noticed bruises on the baby’s face and head and called police. They interviewed the respondent and she denied knowing how the baby was injured or why she was unconscious. She later suggested the bruises may have been caused by one of the other children. Baby Corona was pronounced brain dead on September 26 and died September 27 after being removed from life support. [6] The autopsy report showed the baby died due to blunt force trauma to the head, result of multiple impacts. The pathologist also observed brain injuries, retinal haemorrhages and healing bilateral rib fractures. [7] When the police re-interviewed the respondent in November 2007, she admitted to causing the baby’s injuries and provided details about what had happened. On September 24, 2007, the day before she called the social worker (it is unclear at exactly what time), the respondent accidentally knocked the baby onto the floor, causing the baby to start crying. The respondent became angry and frustrated at the crying, at which point she lifted the baby up by an arm or leg and threw her onto the couch. The baby’s head hit wooden part of the couch. She stopped crying and began making gurgling sounds. The respondent took the baby upstairs and threw her in her crib. The baby's head likely hit the bars of the crib. The respondent was worried the baby might be hurt but did not want to think about it so left her in the crib. Several hours later she checked on the baby and found her unresponsive and unconscious. She put bottle in the baby’s mouth and changed her diaper, then left her in the crib until the next morning, at which point she called Social Services. The respondent shook the baby both on September 24 and the morning of September 25 before calling the social workers. [8] At the time of the incident, the respondent had not done cocaine for at least two days and was suffering from withdrawal. She told Dr. Nicholaichuk, clinical and forensic psychologist retained by the defence to assess her, that at the time of the incident, she was depressed, angry and tired. She also said she had never properly bonded with the baby. She continued to use drugs and alcohol after the baby’s death. [9] The respondent was arrested and charged with second degree murder in January, 2008. The charge was reduced and the respondent pled guilty to manslaughter on December 10, 2008. The court ordered pre-sentence report which indicated the respondent’s overall risk to re-offend was medium. It also indicated she had suffered extensive childhood physical and sexual abuse and severe and chronic spousal abuse at the hands of her previous common law partner as referred to earlier. [10] Dr. Nicholaichuk prepared report which indicated the respondent suffered from symptoms associated with Post-Traumatic Stress Disorder, including anxiousness, hypervigilance, paranoia, and substance abuse. He stated the symptoms could also be result of drug withdrawal. It is unclear from the report and the doctor’s testimony whether he actually diagnosed the respondent with PTSD. In the report he states “the presence of PTSD must be considered to be chronic” but also “she has no mental disorder or emotional problems not related to her substance abuse.” When he testified, he said he had not diagnosed her with PTSD. He assessed the respondent’s general criminal recidivism risk as being in the medium/high range and her recidivism risk for violent offences as being in the low range. He concluded she was not risk to the public. [11] The respondent has criminal record that includes convictions for possession of weapon and mischief (stemming from an incident in which she attacked police car with an axe while intoxicated) as well as further convictions for not abiding by the conditions in her probation order. [12] While in custody, the respondent successfully completed number of courses and has been described by her instructors as kind, respectful and eager to learn and change. The Judgment Below [13] At the sentencing hearing, the Crown and defence agreed the appropriate range of sentencing for manslaughter in Saskatchewan was four to 12 years based on the decision in R.v. Hathway.[1] The Crown suggested six year sentence was appropriate while the defence asked for sentence of one year plus time served. After reviewing the relevant Criminal Code sections, the judge found as aggravating factors the victim was child, the respondent was in position of trust and authority, and the respondent did not seek immediate help when it was apparent the child was injured. He found as mitigating factors the respondent’s acknowledgment of responsibility including her guilty plea, her expressions of remorse, her abusive background which may have caused symptoms of PTSD, and her socioeconomic situation. He found the decision of Zarzeczny J. in R. v. Schoenthal[2] to be particularly helpful. will refer to this case further in the judgment. Positions of the Parties [14] The crown contends the sentencing judge failed to properly assess the moral culpability of the respondent in this manslaughter case. It begins its argument by referring to this comment by McLachlin J. (as she then was) in R. v. Creighton:[3] [86] …Because manslaughter can occur in wide variety of circumstances, the penalties must be flexible. An unintentional killing while committing minor offence, for example, properly attracts much lighter sentence than an unintentional killing where the circumstances indicate an awareness of risk of death just short of what would be required to infer the intent required for murder. The point is, the sentence can be and is tailored to suit the degree of moral fault of the offender... [15] It then argues the sentencing judge ought to have followed the process of analysis set out by the Alberta Court of Appeal in R. v. Laberge.[4] Such analysis requires: firstly, consideration of the nature of the unlawful act and the offender's mental state at the time it was committed and, secondly, consideration of the personal characteristics of the offender which would mitigate or aggravate culpability. [16] In that case the court noted that in manslaughter cases the unlawful acts which cause death may be divided into three broad categories: 1. Those which are likely to put the victim at risk of, or cause, bodily injury; 2. Those which are likely to put the victim at risk of, or cause, serious bodily injury; or 3. Those which are likely to put the victim at risk of, or cause, life-threatening injuries.[5] [17] The court noted the offender's subjective mens rea (whether she knew the act was likely to cause one of the types of injuries based on acceptable inferences) as well as objective mens rea (whether she ought to have known based on the standard of reasonable person) are both relevant to placing her degree of moral culpability on this spectrum. The court should assess each of the above categories on subjective and objective basis. In the objective analysis, the court should identify whether the act was likely to cause the severity of the injury at issue or simply risk of that degree of injury. Therefore, there are many different combinations of subjective and objective culpability which are possible. The court also stated an impulsive act did not necessarily indicate lower degree of subjective or objective mens rea. [18] The respondent replies to this argument by stating the assessment of moral culpability is question of mixed fact and law and appellate courts should defer to the trial judge's findings of fact absent palpable and overriding error or error in principle. The sentencing judge did not explicitly examine the nature of the unlawful act causing the infant's death. However, the respondent points to the judge’s reference to Schoenthal (the only case cited by the sentencing judge and case of criminal negligence causing death rather than manslaughter) as putting the unlawful act in the lowest Laberge category. In that case, the trial judge found the mother (in stressful circumstances) so vigorously shook her 23-month-old child that she caused him severe subdural and retinal haemorrhaging which led to his unconsciousness and ultimately his death. The decision of this Court overturning the finding in Schoenthal was not referred to by counsel or brought to the attention of the trial judge below. However, this does not affect the appellant’s argument the unlawful act at issue here is in the lowest Laberge category. [19] The appellant next argues the sentence imposed fails to adequately address the principles of denunciation and general deterrence and in particular argues the judge failed to address s. 718.01 of the Code. It reads: When court imposes sentence for an offence that involved the abuse of person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [20] The appellant then argues the sentencing judge overemphasized the significance of the factors he found to be mitigating. In particular, the appellant contends the judge overemphasized the mitigating nature of the respondent's abusive background, her associated mental disorder which resulted from that background, as well as her social and economic situation. Further the appellant submits the judge erred in not considering the respondent's criminal record to be an aggravating factor. [21] The appellant does not dispute the fact the respondent had an extremely abusive background but contends the sentencing judge failed to explain how the respondent's abusive background both contributed to the offence and why it reduced her moral culpability. Further, there is no support in the Criminal Code for the idea that drug addicted mothers should be held less accountable for killing their children. The argument the respondent's moral culpability was reduced because she suffered from PTSD should have been rejected by the sentencing judge because the respondent’s symptoms were not of character which interfered with her ability to appreciate her surroundings, control her actions or understand the consequences of them. The sentencing judge should not have relied on the respondent's symptoms of PTSD as mitigating factor. [22] The appellant argues the judge's reliance on Hathway, supra, to determine range ought to have been followed with an analysis of an appropriate sentence within that range. It says it is of little substance to define the width of the range and then fail to focus on the range of sentences normally reserved for similarly situated offenders who commit similar offences. The appellant argues the trial judge should have been guided by the decision of this Court in R. v. F. (R.R.), [6] where it held that reasonable starting point for custodial sentence for unlawful act manslaughter is seven years. [23] The appellant then refers to R. v. Bighead,[7] decision of this Court which it contends strongly supports the proposition that offenders who cause the death of child in comparable circumstances will usually receive custodial terms of between and 10 years. In that case this Court held that five-year sentence imposed on an offender who pled guilty to aggravated assault was demonstrably unfit. In Bighead the offender struck young child and the child's head hit sharp wooden edge. The child suffered permanent catastrophic brain injury. The offender was also abused as child and had difficult childhood. He was diagnosed as suffering from PTSD and other mental disorders. Given the nature of the injuries suffered, the Court held the appropriate sentence range was more properly defined by child-abuse manslaughter cases than by aggravated assault cases. [24] Finally the appellant contends the sentencing judge should not have concluded the respondent's social and economic circumstances mitigated her moral culpability. The sentencing judge found the respondent was forced to care for her four children without any appropriate support mechanisms from family and/or Social Services. The respondent submits she felt overwhelmed trying to take care of the children with their mental and developmental disorders. The appellant says the sentencing judge misapprehended the evidence because the appropriate government agency did not refuse to support the respondent. In fact, it was the respondent who avoided the agency and did not ask for help because she was afraid the officials would find out she was using drugs and take away her children. She did not seek the support of her mother because she was not getting along with her at the time of the offence. It is clear she had no support from her spouse but the fact that both parents were more concerned about their drug habits than they were about facing the challenges of looking after the children cannot be mitigating circumstance. [25] The deemed “aggravating factors,” i.e. the victim being child and the offender abusing relationship of trust, were clearly considered by the sentencing judge. The appellant is correct in suggesting the judge's description of the respondent’s prior offences seemingly minimized their seriousness but on that basis alone, would not find the sentence unfit. [26] With regard to the appellant's argument the sentence imposed fails to adequately address the principles of denunciation and general deterrence and, in particular, that the judge failed to address s. 718.01 of the Code, note the judge did in fact cite the section and commented that children needed to be protected from abuse at the hands of parents. It is clear the judge directed his mind to the issue. [27] The respondent's dysfunctional upbringing or dysfunctional life was put forth by the Crown as an aggravating factor at the sentencing hearing. The judge asked Crown counsel whether it could in fact be mitigating factor. Counsel responded whether it is mitigating factor or not is up to the court.[8] In my view these particular issues were considered and given appropriate weight by the sentencing judge. [28] The argument the judge did not give proper weight to the gravity of the offence and the respondent's moral culpability ultimately fails. It is clear the judge did not embark on an analysis of the kind set out in Laberge but that authority does not suggest such detailed analysis is necessary. That authority does not require judge to explicitly enunciate every factor considered in coming to his conclusion. The sentencing judge identified the incident as "tragic story where mother instead of protecting her young child, causes that child's death. As said earlier, the accused admits causing the child's death and she will have to live with that knowledge for the rest of her life, that instead of protecting her child, she caused its death.”[9] The judge was clearly alive to the seriousness of the offence. [29] do not read the trial judge’s reasons as failing to give adequate weight to both the seriousness of the offence and the respondent's moral culpability. As read the judgment, it was framed by the arguments and cases submitted by counsel. The parties agreed upon the range of sentences in manslaughter cases and the only cases referred to the sentencing judge were Hathway, supra, (a charge involving the death of an adult), Schoenthal, supra, (a charge of criminal negligence causing death), and R. v. Bos[10] (a case out of British Columbia involving manslaughter of seven-week-old child with exceptional personal circumstances of the accused). will discuss each of these cases further. [30] In other words, the judge was directed to very narrow range of authorities, i.e. case identifying the appropriate range, case with dissimilar charge, and case from another jurisdiction with sentence at the low end of the range because of the personal circumstances of the accused. In these circumstances cannot find the judge failed to give proper weight to the gravity of the offence and the degree of the respondent's responsibility. It would of course be helpful if more detailed analysis along the lines suggested in Laberge had been given in order to enhance meaningful appellate review. However, am not satisfied the judge failed to properly consider this factor. I am, however, satisfied this same limited framework presented by counsel led the judge to err by failing to observe the need for parity in sentencing and as a result, the sentence imposed was not similar to sentences imposed on other offenders for similar offences committed in similar circumstances. [31] In their sentencing submissions, the parties argued the range of sentences in Saskatchewan in manslaughter cases runs from four to 12 years in most circumstances. As mentioned above, the Crown specifically referred to Hathway, supra, where that range was confirmed although with the knowledge that there may be circumstances in particular cases which lead to sentence outside of the range. The judge concluded that in terms of manslaughter where child is the victim, the range is similar to the general range. [32] The Saskatchewan cases the respondent submitted at sentencing, i.e. Schoenthal, supra, case of criminal negligence causing death rather than unlawful act manslaughter; and Hathway, supra, case involving the death of an adult, in my view are not helpful in the determination of fit sentence within the appropriate range. The third case cited by the respondent before the sentencing judge, Bos, supra, was case where the British Columbia Court of Appeal reduced sentence of three years to two years less day where father was convicted of manslaughter in the death of his seven-week-old daughter. The court took particular note the accused was Kuwait war veteran, good father with no prior record, with otherwise exemplary conduct in the workforce and at home, with little likelihood of reoffending, and suffering deep personal agony as result of his actions. [33] On appeal the respondent cited R. v. Pauchay,[11] in which an intoxicated father left his two daughters out in extremely cold weather causing them to freeze to death. He was not directly and actively violent towards his children. He was convicted of criminal negligence causing death. Schoenthal, supra, has been discussed earlier. The respondent also cites R. v. Lam,[12] case where the operator of daycare was found guilty of criminal negligence causing death. Except for Bos, supra, the cases seemingly involve circumstances of lower moral blameworthiness than was demonstrated in the case before us. [34] The judge was not directed to decisions of this Court on the starting point for manslaughter sentences and specifically the issue of unlawful act manslaughter causing the death of child. [35] In F. (R.R.), supra, the Court reaffirmed that reasonable starting point for custodial sentence for unlawful act manslaughter is seven years. In Bighead the Court cited two decisions with approval those being R. v. Sinclair[13] (a decision of the Manitoba Court of Appeal) and R. v. Neuls.[14] In Sinclair the mother was sentenced to custodial term of seven years and in Neuls the court imposed ten-year custodial sentence on the offender who killed his two-year-old stepchild. Neuls was case involving prior acts of violence to the child resulting in massive bruising, burns to the child's feet and head injuries causing brain swelling resulting in death. [36] In my view, the most useful authority in this jurisdiction when assessing manslaughter sentences for adults who kill children is Bighead. There are significant similarities to the case before us. [37] Ken Bighead was looking after his partner's three children, including the victim who was 19 months old. At some point he hit the baby with enough force that the baby's head struck the sharp edge of the door and fell. The child ended up in persistent vegetative state with severely reduced lifespan. Mr. Bighead initially denied responsibility, hid evidence and blamed the injuries on one of the other children. There were prior acts of abuse towards the child. Like the respondent, Mr. Bighead had background described as "tragic." He had been diagnosed with number of mental disorders, including PTSD, Generalized Anxiety Disorder and Borderline Personality Disorder. He had dependence on alcohol and marijuana and an extensive criminal record. [38] Jackson J.A. found the sentencing judge to have erred by considering cases of aggravated assault where the child had essentially recovered instead of looking at comparative manslaughter cases. She referred to Neuls, supra, and Sinclair, supra, as indicative of the proper range for manslaughter causing the death of child. In each of these cases the offender had compelling personal circumstances. In Neuls sentence of 10 years was imposed and in Sinclair the sentence was just under seven years. Mr. Bighead was sentenced to years. [39] Again, the similarities between that case and the present case are striking. Both offenders had troubled histories and mental health problems, although Mr. Bighead's were more severe. Both initially denied responsibility, blamed the injuries on another child and failed to call for help in timely manner. An important difference was the fact Mr. Bighead had committed prior acts of physical abuse towards the child while there is no evidence of history of abuse in this case. Further Mr. Bighead had more extensive criminal record than the respondent. He was also only looking after the child for couple of hours as opposed to the respondent who was raising four children with developmental and health problems and severe problems of her own. Here the respondent refused to ask for available help because of her drug abuse problem. [40] These factual differences however do not warrant, in my view, sentence differential of over two years. Taking into account the mitigating factors already identified, in particular the respondent\'s post-sentence rehabilitative potential and the absence of evidence of prior acts of violence, a sentence slightly below the range as the one imposed in Bighead leads me to conclude a sentence of six years is appropriate, with 26 months credit for remand as imposed below. Leave to appeal is granted and the appeal is allowed. DATED at the City of Regina, in the Province of Saskatchewan, this 8th day of September, A.D. 2009. “LANE J.A.” LANE J.A. concur “RICHARDS J.A.” RICHARDS J.A. concur “LANE J.A.” for WILKINSON J.A. [1] 2008 SKQB 480 (CanLII). [2] 2006 SKQB 177 (CanLII); 278 Sask.R. 273. [3] 1993 CanLII 61 (SCC), [1993] [4] (1995), 1995 ABCA 196 (CanLII), 165 A.R. 375. [5] Ibid. at para. [6] 2008 SKCA 52 (CanLII), 310 Sask. R. 124. [7] 2003 SKCA 44 (CanLII), 232 Sask. R. 236. [8] Transcript of Proceedings dated February 11, 2009 at p. 65. [9] Transcript of Proceedings dated February 11, 2009 at p. 78. [10] 2000 BCCA 531 (CanLII), 143 B.C.A.C. 216. [11] 2009 SKPC 35 (CanLII). [12] 2004 ABQB 78 (CanLII), 37 Alta. L.R. (4th) 141. [13] 1997 CanLII 22827 (MB CA), [1998] W.W.R. 228. [14] (1991), 1991 CanLII 8034 (SK CA), 93 Sask. R. 89.

The respondent pled guilty to a charge of manslaughter arising out of fatal injuries she inflicted on her 7 month old daughter. The sentencing judge awarded the respondent 26 months credit for 13 months in pre-trial custody and then imposed a sentence of 2 years less 1 day to be followed by 2 years probation. The Crown seeks leave to appeal the sentence imposed as demonstrably unfit. HELD: Appeal allowed. 1) Taking into account the mitigating factors and in particular the respondent's post-sentence rehabilitative potential and the absence of evidence of prior acts of violence, a sentence slightly below the range as the one imposed in R. v. Bighead, 2003 SKCA 44 leads the Court to conclude a sentence of 6 years is appropriate, with 26 months credit for remand as imposed below. 2) The sentencing judge was directed to a very narrow range of authorities. In these circumstances this Court cannot find that the judge failed to give proper weight to the gravity of the offence and the degree of the respondent's responsibility. It would be helpful if a more detailed analysis along the lines suggested in R. v. Laberge (1995), 165 A.R. 375 had been given in order to enhance meaningful appellate review. However, this Court is not satisfied the judge failed to properly consider this factor. The Court is satisfied that the limited framework presented by counsel led the judge to err by failing to observe the need for parity in sentence and as a result, the sentence imposed was not similar to sentences imposed on other offenders for similar offences committed in similar circumstances.

4_2009skca102.txt

2003 SKQB 229 Q.B.C.A. A.D. 2003 No. J.C.H. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF HUMBOLDT BETWEEN: AUSTIN E. LAYBOURNE and HER MAJESTY THE QUEEN RESPONDENT John C. Will for the appellant Judy L. Halyk for the Crown JUDGMENT KLEBUC J. May 15, 2003 [1] On December 2, 2002, the Honourable D.M. Ebert, a judge of the Provincial Court of Saskatchewan, convicted the appellant (the accused) of the following offence:. . . [that] on or about the 26th day of May of the year 2002 at Watson in the Province of Saskatchewan, he did while his ability to operate a motor vehicle was impaired by alcohol or a drug, did have the care or control of a motor vehicle, contrary to Sections 255 and 253 of the Criminal Code. [2] The appellant appealed his conviction on following grounds:a) The learned trial Judge misdirected herself in finding, if she did so find, that the [sic] there was sufficient evidence beyond a reasonable doubt that the Appellant’s ability to operate a motor vehicle was impaired by alcohol or a drug;b) The learned trial Judge drew an incorrect inference from the facts at trial, in finding that the Appellant’s ability to operate a motor vehicle was impaired by alcohol or a drug;c) The learned trial Judge failed to give a correct legal effect to the facts that she found, including, inter alia, the lack of evidence or indicia of impairment of the Appellant, at the material time that the Appellant was found to have care or control of a motor vehicle. JUDGMENT AT TRIAL [3] The learned trial judge delivered comprehensive reasons for judgment wherein she reviewed the applicable law and applied it to the facts as she had found them. Of particular relevance are the following provisions of her reasons for judgment: This Court is of the view that although this may be the basis for an argument once the vehicle was indeed turned off and the keys removed, clearly am satisfied, as have indicated, on the evidence, that the accused’s condition did not change for the period that he was in the driver’s seat and if impairment is indeed proven, which is the next issue will deal with, then it applies equally to when he was first observed in the vehicle as to later observed in the vehicle. Clearly impairment of ability to drive is an issue of fact to be found on all the evidence before the Court and must satisfy the Court beyond reasonable doubt. Having carefully reviewed all of the evidence before the Court relating to each of the factors enumerated in the Landis [sic] case, and although any one of them in isolation may not be sufficient to meet the onus, when consider the evidence in its totality and all of the factors, can only conclude that the ability of Mr. Laybourne to operate motor vehicle was impaired by alcohol, that impairment in my view was to the point where he had stopped inexplicably his vehicle in the middle of an intersection in the way of traffic, in drive and running, with his foot on the brake while sleeping soundly. His ability to make appropriate decisions with respect to driving was clearly impaired. There is no other explanation offered for this inappropriate behaviour. have concluded then that the Crown has proven beyond reasonable doubt that the degree of impairment here was sufficient to meet the Stellato test and have found that Mr. Laybourne was in care or control of the motor vehicle at the time in question, therefore, find him guilty as charged. MATERIAL FINDINGS OF FACT [4] On May 26, 2002, between 7:10 a.m. and 7:15 a.m., Carol Sommer was operating motor vehicle in westerly direction along Fourth Avenue Northwest in Watson, Saskatchewan. At the intersection of Fourth Avenue and Main Street she came upon stationary vehicle (“the appellant’s vehicle”) situated in the southbound lane of Main Street with the front portion thereof protruding into the intersection of the aforementioned roadways and interfering with westbound traffic along Fourth Avenue. Ms. Sommer “pulled around” the appellant’s vehicle, and while doing so, noted that its engine was running, its lights were on, and that someone occupied its driver’s seat. Out of concern for the occupant, she stopped her vehicle, opened the driver’s door of the appellant’s vehicle and found the appellant sleeping in its driver’s seat with his head propped up on his right hand. She further observed that the appellant’s right foot was on his vehicle’s brake, the vehicle was in gear, the vehicle’s keys were in its ignition, and the appellant had no shirt on. She responded by shutting off the vehicle’s engine and placing its transmission in park. She made no assessment of whether the appellant’s ability to operate motor vehicle was impaired by alcohol. Immediately thereafter, Ms. Sommer returned to her work place, contacted member of the RCMP, and then phoned Murray Brothers and asked that he remove the ignition keys from the appellant’s vehicle. [5] Mr. Brothers resides near the intersection of the aforementioned streets and the appellant’s vehicle was visible from his home. At Ms. Sommer’s request he removed the keys from the appellant’s vehicle at approximately 7:55 a.m. While removing the keys, he observed the appellant asleep in the position described by Ms. Sommer with an open bottle of beer between his legs. Thereafter, he returned to his home and awaited the arrival of police officer. While waiting for police officer to arrive, Mr. Brothers observed on several occasions that the appellant remained asleep in his vehicle. [6] Constable Zwarych, member of the RCMP, arrived at the appellant’s vehicle at 8:15 a.m. and found the appellant asleep in the position observed by Ms. Sommer and Mr. Brothers and with bottle of beer between his legs. After awakening the appellant, he observed that the appellant exhibited multiple signs of impairment by alcohol and arrested him for the offence for which he was convicted. [7] The appellant’s submissions may be distilled to the following. First, while he may have had care and control of his motor vehicle at the time he was observed by Ms. Sommer, there is no evidence of any impairment of his ability to operate motor vehicle during such period (“time frame No. 1”). Second, at the time Constable Zwarych observed signs of impairment of the appellant’s ability to operate motor vehicle (“time frame No. 2”), the appellant was not in care and control of the motor vehicle because Mr. Brothers rendered it inoperable by removing its keys. In the result, the appellant argues that the conviction must be set aside in the absence of evidence proving the coexistence of impairment and care and control during either time frame No. or time frame No. 2. [8] In response, the Crown submitted that essential elements of the offence charged were proven to exist during time frame No. by means of Ms. Sommer’s observance of the appellant sleeping in the driver seat of his vehicle with its engine running and the observations of Mr. Brothers and Constable Zwarych regarding multiple signs of impairment by alcohol exhibited by the appellant during time frame No. 2. The Crown counsel further posited that the trial judge was entitled to and did correctly infer that the appellant was impaired during time frame No. based on the evidence gleaned during time frame No. 2. [9] Counsel’s submissions give rise to following questions: 1. Does the evidence support the trial judge’s findings regarding the element of care and control and the element of impairment? 2. Did the trial judge err by drawing an inference that the appellant’s ability to operate motor vehicle during frame No. was impaired by alcohol based on evidence gleaned during time frame No. 2? [10] With respect to the first question, I am satisfied that the trial judge’s findings of fact concerning the essential elements of care and control and impairment by alcohol are supported by the evidence. Direct evidence confirms that the appellant had care and control of the subject motor vehicle during time frame No. 1. In addition, to the extent the Crown relied on the presumption afforded by s. 258 of the Criminal Code, the rebuttal evidence led by the appellant failed to rebut the same. That evidence consisted of the testimony of his three friends whose evidence related to the appellant having abstained from consuming alcoholic beverages in their presence and not to whether he had care and control of his vehicle during time frame No. 1. [11] I am further satisfied that the trial judge properly applied the law outlined R. v. Shuparski, 2003 SKCA 22 (CanLII), [2003] S.J. No. 147 (C.A.) and the authorities cited therein when determining that the appellant had care and control of the vehicle. [12] With respect to the issue of impairment, the trial judge correctly applied R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), and the tests and observations outlined in R. v. Landes (1997), 1997 CanLII 11314 (SK QB), 161 Sask. R. 305 (Q.B.), and considered R. v. Hall (1994), 1994 CanLII 4630 (SK CA), 125 Sask. R. 62 (C.A.), when concluding that the appellant’s ability to operate motor vehicle was impaired by alcohol during time frame No. 2. The remaining question then is whether the trial judge erred by drawing the aforementioned inference regarding time frame No. 1. [13] The law pertaining to circumstantial evidence and inferences to be drawn therefrom is well established. In R. v. Burdett (1820), B. Ald. 95 at pp. 161-2, 106 E.R. 873, Abbott C.J. articulated the basis on which trier of fact may draw an inference: In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded, either of explanation or contradiction. [No person is to be required to explain or contradict, until enough has been proved to warrant reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction. .can human reason do otherwise than adopt the conclusion to which the proof tends?] The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected; and it is one of the peculiar advantages of our jurisprudence, that the conclusion is to be drawn by the unanimous judgment and conscience of twelve men, conversant with the affairs and business of life, and who know that, where reasonable doubt is entertained, it is their duty to acquit. [14] While the statement of Abbott C.J. reflects the current state of the law governing circumstantial evidence, it remains subject to the rule in Hodge’s Case (1838), 1838 CanLII (FOREP), 168 E.R. 1136. This rule does not apply in the instant case for there is some direct evidence concerning the appellant’s ability to operate motor vehicle during time frame No. 1. See R. v. Comba, 1938 CanLII (SCC), [1938] S.C.R. 396, D.L.R. 719. [15] In my opinion the inference made by the trial judge is one that a properly instructed jury could have arrived at on the facts in the instant case and therefore should not be interfered with. See United States of America v. Shephard, 1976 CanLII (SCC), [1977] S.C.R. 1067; and R. v. Mezzo, 1986 CanLII 16 (SCC), [1986] S.C.R. 802. [16] In summary, the trial judge made no palpable or overriding error in her assessment of the evidence, or her interpretation of the law or her application of the law to the evidence. The appeal therefore is dismissed.

An appeal of conviction for operating a motor vehicle while impaired by alcohol (Criminal Code s.255 and s.253) on the grounds of misdirection in finding there was sufficient evidence beyond a reasonable doubt as to impairment; an incorrect inference and failure to give correct legal effect to the facts as found including the lack of evidence of impairment at the material time while he was in care or control of the vehicle. HELD: The appeal was dismissed. 1)There was no palpable or overriding error in the assessment of the evidence or in the interpretation or application of the law to the evidence. Findings of fact concerning the essential elements of care and control and impairment were supported by the evidence. The law outlined Shuparski and authorities cited within were properly applied when determining the appellant had care and control. 2)Stellato was correctly applied along with the tests and observations outlined in Landes and Hall in concluding his ability to operate the vehicle was impaired by alcohol. 3)While Burdett reflects the current state of the law governing circumstantial evidence, it remains subject to the rule in Hodge's case (1838). However this rule does not apply here because there was some direct evidence concerning his ability to operate the vehicle during the first time frame (R.v.Comba). A properly instructed jury could have arrived at the same inference on the facts as found.

9_2003skqb229.txt

Editor’s Note: Corrigendum released on May 5, 2011. Original judgment has been corrected with text of corrigendum appended. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Timmons, 2011 NSCA 39 Date: 20110505 Docket: CAC 329645 Registry: Halifax Appellant William Tracy Timmons v. Her Majesty the Queen Respondent Judge: The Honourable Justice Linda Lee Oland Appeal Heard: November 15, 2010 Subject: Entry and search without warrant ss. and 24(2) Charter Summary: mother who reported that her daughter was being abused by the appellant did not know exactly where he lived. When the police called the daughter, she said that she was fine and friend was picking her up. She refused to say where she was. She also hung up and did not answer when called back. The name she gave of the person who was to pick her up was incorrect. The police continued to try and locate the daughter. After midnight, two hours after the call, five officers arrived at the appellant’s home. Some heard what was described as scream. The police pounded on the door. When the daughter opened it, she said that everything was fine. The police entered. They could see inside bedroom where the appellant lying on bed. One officer went straight there. The appellant cooperated during the pat down search. Officers then entered each room in the house. After seeing number of items, they obtained search warrant. At trial, the appellant alleged breach of s. of the Charter. In his voir dire decision, the trial judge held that the police entry and the search of the house were justified. He did not discuss s. 24(2). The evidence heard on that Charter application was considered in the trial proper along with additional evidence obtained pursuant to the warrant. The appellant was found guilty of several drug offences. Issue: Whether the warrantless entry and search of the home by the police was violation of s. of the Charter? If so, whether the evidence found as result of the searches should have been excluded pursuant to s. 24(2) of the Charter. Result: Leave to appeal granted, the appeal allowed, and the conviction set aside. In the circumstances, although the call was not a 911 call, or made by the alleged victim or from the home of the appellant, it was reasonable for the police to search for her, to go to the appellant’s home, and not to simply leave once the daughter told them at the door that she was fine. However, the trial judge erred in principle by failing to consider alternatives short of police entry into the home and bedroom, and the search of the home, all without a warrant. Their authority to investigate such call includes the police locating the alleged victim, and determining if their assistance may be required but, without more, does not extend to entry or search of premises. The record here is insufficient for this court, at first instance, to engage in a s. 24(2) analysis. This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 17 pages. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Timmons, 2011 NSCA 39 Date: 20110505 Docket: CAC 329645 Registry: Halifax Appellant William Tracy Timmons v. Her Majesty the Queen Respondent Judges: Oland, Fichaud and Farrar, JJ.A. Appeal Heard: November 15, 2010, in Halifax, Nova Scotia Held: Leave to appeal is granted, the appeal is allowed and the conviction is set aside per reasons for judgment of Oland, J.A.; Fichaud and Farrar, JJ.A. concurring. Counsel: Ralph W. Ripley, for the appellant Monica McQueen, for the respondent Reasons for judgment: [1] The main issue on this appeal concerns the police entry and search of home, without warrant. In the particular facts of the case, did their actions amount to breach of the Charter right to be secure against unreasonable search and seizure? Other issues arising from this appeal concern the validity of the search warrant that issued after that entry and search, and the admissibility at trial of certain certificates of analysis. [2] For the reasons which follow, I would allow the appeal. [3] The appellant, William Tracy Timmons, was charged with unlawful possession of cocaine and possession of marijuana for the purpose of trafficking, contrary to ss. and respectively of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. During the course of his trial, Justice Frank Edwards held voir dire to determine the admissibility of certain evidence. [4] How the police came to arrive and search the home in Gillisdale, Inverness County, Nova Scotia was described by the trial judge in his voir dire decision reported as 2009 NSSC 407 (CanLII): [3] Facts: On October 10, 2008, at approximately 10:30 p.m., Nadine Shaw (then age 24 years) telephoned her mother Peggy Shaw. Nadine advised her mother that she and the Accused (with whom Nadine was living) were having fight and “I wanted her to come pick me up.” [4] The family vehicle was not available so Peggy called the RCMP to have them go for her daughter. Ms. Shaw told the dispatcher that her daughter was being abused. She also told him that the Accused “deals in drugs and has big Rottweiler.” Peggy said she did not know whether or not there were weapons in the Accused’s house. [5] The call was relayed by RCMP telecoms Truro to the Inverness Detachment. Constables Roberts and Bojaruniec were on duty in separate vehicles. When they received the call, they teamed up in one vehicle and began to search for the Accused’s home. Peggy Shaw did not know exactly where the Accused lived and had provided telecom with very vague description. It should be kept in mind that geographical area in question is large sparsely populated rural area. Constable Roberts using her cell phone called Peggy Shaw back to get more details. During that call, Peggy Shaw confirmed her belief that Nadine was being abused and also provided Constable Roberts with Nadine’s cell phone number. Unfortunately, Peggy Shaw could not provide specific directions to the Accused’s location. [6] The RCMP then contacted Nadine who laughed and said “so my mother called.” Nadine insisted that she was fine and did not need the police. Nadine stated further that friend “Jason Timmons” was picking her up. It turns out that there is no such person as Jason Timmons and she mistakenly said Jason Timmons when she meant Jason Phillips. Nadine went on to reiterate to Constable Roberts “I’m just fine and am leaving right now.” Nadine refused to tell police where she was located. [7] Constable Roberts again called Peggy Shaw who advised that the friend is probably Jason Phillips (not Timmons) and provided police with Phillips’ phone number. Constable Roberts phoned that number and spoke with Jason’s mother, Irene. Irene confirmed that Nadine had called and Jason has just left. Irene provided more details about the location of the Accused’s home and gave sufficient details so that police were enabled to successfully find the residence. But it did take them at least two hours to do so. They recorded their time of arrival there at approximately 12:30 a.m. and the initial call, as have noted, was at 10:30 p.m. By the time police got to the Accused’s residence, therefore, the call was hours old. [8] It should be borne in mind that Constable Roberts was aware that the Accused had outstanding charges for obstructing police and impaired driving. Police also considered Mr. Timmons to be in the violent category (Code 10:36). [9] Constable Roberts also believed the Accused to be “major CDSA” (Controlled Drugs and Substances Act). [10] Shortly after Constables Roberts and Bojaruniec arrived, they heard scream coming from inside the residence. Nadine denies there was any such noise but do not believe her. (Nadine is still Accused’s girlfriend doing her best to extricate him from situation she probably feels responsible for). (Nadine’s memory vague e.g. clearly wrong on times. Memory selective. Constable Roberts says the scream increased everyone’s threat level. [11] In fairness to her, there is another possibility which would be consistent with the evidence given by Nadine Shaw. Nadine stated that while police were still outside the residence, the dog, Rottweiler mix, which was inside the home, was whimpering. (The dog was not barking.) It is possible that Constables Roberts and Bojaruniec honestly mistook the whimpering sounds for human sounds. Constable Roberts did described the scream as “... someone trying to scream but not able to actually get scream out as if in panic situation. It would be my first thought when heard it. So it wasn't loud scream cry for help but it was like ... shriek.” [12] Constable Septon arrives five minutes later, followed few minutes after that by Constable Montreuil and Auxiliary Constable Camus. [13] Police also saw dog dish and chain outside indicating the possible presence of guard dog. This observation made drawing weapons prudent and absolutely justified. [5] Nadine Shaw responded to the police pounding on the door, demanding that it be opened and the dog secured. When she opened the door, she said that everything was fine. Nadine told the police that no assault had taken place, she and Mr. Timmons had had verbal argument, she had wanted to leave and he did not want her to take his truck. [6] From where they had entered, the three officers could see inside bedroom off that space. There was person lying on the bed. Cst. Montreuil went straight there. She asked Mr. Timmons to get out of bed and be searched for officer safety reasons. He cooperated. Cst. Septon assisted with the pat down search. Afterwards, Cst. Montreuil took him to the living room. [7] The other two officers entered the residence after the first three. They assisted in “clearing the house” for security purposes. They entered each room and space that could hold person to ensure that no one was concealed there and that there were no firearms. [8] After seeing number of items about the property, the police decided to obtain search warrant. Cst. Montreuil relayed information by telephone to Cpl. MacKay. In her Information to Obtain Search Warrant (the “Information”), Cpl. MacKay wrote that the officers, whom she identified by name in each instance, had observed articles including: “a large Ziploc bag containing substances believed to be Marijuana in the bedroom on top of clothes basket, in plain view”, “a large black garbage bag containing dried marijuana plants in the kitchen”, “approximately 170 pre-planted marijuana seed basket” in the basement, and “Miracle Grow solution, large buckets and insulation venting. As well as halogen lamp, timers, tray with heater, and fans” in the spare room, which had its window covered with dark plastic. [9] In the Information, Cpl. MacKay stated that she had reasonable grounds to believe and did believe that there were controlled substances or precursors at dwelling located at 139 Egypt Road, Scottsville, Inverness County. The information included description of the premises and out buildings. [10] While the RCMP officers waited at the house, Cpl. MacKay took the Information to Justice of the Peace. He issued warrant authorizing the search of the premises described in the Information. [11] During the voir dire, the RCMP officers were not able to substantiate the origin or the description of all the particulars which appeared in the Information. They testified as to some omissions or discrepancies in how the house was described in that document compared with the actual premises. The Voir Dire Decision Unreasonable Search and Seizure [12] In his decision on the voir dire concerning the alleged breach of s. of the Charter by the warrantless entry and search, the judge stated: [14] In those circumstances, police had a responsibility to enter the residence – whether invited or not. The perceived scream meant that either Nadine was lying about being okay, or had been subsequently threatened, or that someone else inside was in trouble. Police had to investigate and check the entire house for the presence of other persons. He stated that there was no qualitative difference between 911 call as in R. v. Godoy, 1999 CanLII 709 (SCC), [1999] S.C.R. 311 and here where Peggy Shaw had phoned police out of concern for her daughter’s safety. [13] According to the judge, the entry by the police was not only justified but entirely necessary. He also stated that once inside the residence, the police were justified in checking the house to ensure that there were no other occupants and in searching Mr. Timmons to ensure he had no weapon. The judge held that the Crown had proved that the police acted reasonably and lawfully in searching Mr. Timmons’ residence and that there was no breach of s. of the Charter. The Trial Decision [14] The evidence heard by the trial judge on that Charter application was considered in the trial proper along with additional evidence called by the Crown. The judge found Mr. Timmons guilty as charged of possession of cocaine and marijuana, and possession of marijuana for the purposes of trafficking, contrary to ss. and of the Controlled Drugs and Substances Act. Mr. Timmons appeals against his conviction. [15] Mr. Timmons collapsed the 18 issues in his notice of appeal into four categories. The issues can be restated as follows: 1. Was the initial warrantless entry and search of the home by police violation of s. of the Charter? 2. Was the further search of the premises under the authority of search warrant violation of s. of the Charter? 3. Should the evidence found as result of the searches have been excluded pursuant to s. 24(2) of the Charter? 4. Should the certificates of analysis tendered at trial have been admitted into evidence? Standard of Review [16] The jurisdiction of this court in this appeal against conviction is set out in s. 675 of the Criminal Code: 675. (1) person who is convicted by trial court in proceedings by indictment may appeal to the court of appeal (a) against his conviction (i) on any ground of appeal that involves question of law alone, (ii) on any ground of appeal that involves question of fact or question of mixed law and fact, with leave of the court of appeal or judge thereof or on the certificate of the trial judge that the case is proper case for appeal ... [17] For questions of law, the standard of review is correctness. For questions of fact, it is overriding and palpable error. For questions of mixed law and fact, it is also palpable and overriding error, unless question of law is readily extricable. In that situation, the standard of correctness applies to that question of law. See Housen v. Nikolaisen, 2002 SCC 33 (CanLII). [18] Whether the correct legal standards were identified and applied is question of law. If no such error was made, an appellate court then considers the evidentiary basis of the decision and the application of the legal principles to the facts of the case which, unless there are extractable legal questions, are questions of mixed fact and law. Analysis Warrantless Entry and Search [19] Mr. Timmons argues that the trial judge erred in law in determining that his rights as guaranteed by s. of the Charter to be secure against unreasonable search and seizure were not breached by the police entry and search of his home. He raises several arguments, including: (a) The call to which the police responded was not 911 call or distress call made from his home; (b) The police were not justified in entering when Nadine opened the door and said that she was fine; and (c) Once the police had entered, their “clearing the house” was not justified. [20] begin by setting out the relevant provisions of the Canadian Charter of Rights and Freedoms, namely, sections and 24: Search or seizure 8. Everyone has the right to be secure against unreasonable search or seizure. Enforcement of guaranteed rights and freedoms (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. Exclusion of evidence bringing administration of justice into disrepute (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. [21] An individual is entitled to privacy in his or her own home. The unauthorized presence of state agents such as the police constitutes an invasion of that privacy. As stated by Cory J. at 141 of R. v. Silveira, 1995 CanLII 89 (SCC), [1995] S.C.R. 297: 141 .. It must be the final refuge and safe haven for all Canadians. It is there that the expectation of privacy is at its highest and where there should be freedom from external forces, particularly the actions of agents of the state, unless those actions are duly authorized. This principle is fundamental to democratic society as Canadians understand that term. ... [22] However, the principle is not without exceptions. In her decision in Silveira, L’Heureux-Dubé J. referred to R. v. Landry, 1986 CanLII 48 (SCC), [1986] S.C.R. 145 where the majority concluded that warrantless entry in hot pursuit circumstances was permitted, and stated at p. 744: ... In concurring reasons, Estey J. added in Landry (Beetz and McIntyre JJ. concurring), at p. 166, that the ancient principle of the inviolability of the home "must yield to the legitimate requirements of law enforcement" and went on to cite the following passage from the case of Lyons v. The Queen, 1984 CanLII 30 (SCC), [1984] S.C.R. 633, where for the majority he wrote (at p. 657): The home is not castle in isolation; it is castle in community and draws its support and security of existence from the community. The law has long recognized many compromises and outright intrusions on the literal sense of this concept. (Emphasis in original) [23] Once it has been demonstrated that search is warrantless one, the burden is on the Crown to show, on balance of probabilities, that the search was reasonable one. search will be reasonable if it is authorized by law, if the law itself is reasonable, and if the manner in which the search was conducted is reasonable: R. v. Collins, 1987 CanLII 84 (SCC), [1987] S.C.R. 265 at 23. [24] It is undisputed that here the police activity following entry and before the issuance of the search warrant amounted to warrantless search and thus was prima facie unreasonable. It is not suggested that exceptions to the expectation of privacy in home, such as hot pursuit, exigent circumstances, or statutory authorization, are applicable. In order to be lawful, the search had to have been conducted pursuant to common law police powers. If it was not lawful, it is then necessary to consider whether the evidence obtained as result should be excluded under s. 24(2) of the Charter. [25] With this background, turn to the arguments raised by Mr. Timmons. (a) Not 911 or Distress Call [26] Mr. Timmons characterizes the original call by Peggy Shaw to the RCMP as just call by mother looking for drive for her daughter. He argues that it was not 911 call, nor akin to 911 call. The call was not made by an alleged victim, or from his home. He emphasizes that before the police arrived at his residence, Nadine had told the police on the telephone that she was “perfectly fine”. She had laughed and said that she was in no danger. Nadine had indicated that she did not need help, but drive home, and she had already arranged drive. [27] With respect, cannot accept this argument. Rather, agree with the trial judge. In the particular circumstances of this case, the fact that the call which triggered police response was not through 911, by the alleged victim, or from the house is not material. [28] begin by considering the jurisprudence regarding 911 emergency response calls. The leading case is R. v. Godoy, supra. There the police responded to 911 call which originated from Mr. Godoy’s apartment. It was classified as an “unknown trouble” call, one where the line had been disconnected before the caller spoke. When the accused answered the door, he said there was no problem. He tried to shut the door when the police asked to enter to investigate, but an officer prevented him from doing so. After the officers entered, they found the accused’s wife sobbing and injured. The accused was eventually charged, among other things, with assaulting police officer with the intent of resisting arrest. [29] The trial judge acquitted on the basis that the police entry into the accused’s apartment was unauthorized and, therefore, all subsequent police actions, including his arrest, were illegal. That decision was overturned on appeal. The Ontario Court of Appeal held that the police were acting in the execution of their duty to protect life and prevent injury when they forcibly entered the apartment in response to disconnected 911 call. [30] On appeal to the Supreme Court of Canada, one of the issues was whether the appellate court had erred in that determination. Chief Justice Lamer, writing for the Court, stated: The police were acting in the course of their duty to "protect life" which includes preventing death or serious injury. They entered the apartment with the knowledge that 911 call was made from that residence. Entry was necessary to determine the cause of the distress and to give aid if necessary. Giving aid to persons in distress is the very essence of the police duty to "protect life". 11 In my view, public policy clearly requires that the police ab initio have the authority to investigate 911 calls, but whether they may enter dwelling houses in the course of such an investigation depends on the circumstances of each case. 20 see no other use for an emergency response system if those persons who are dispatched to the scene cannot actually respond to the individual caller. certainly cannot accept that the police should simply take the word of the person who answers the door that there is "no problem" inside. 22 Thus in my view, the importance of the police duty to protect life warrants and justifies forced entry into dwelling in order to ascertain the health and safety of 911 caller. The public interest in maintaining an effective emergency response system is obvious and significant enough to merit some intrusion on resident's privacy interest. However, emphasize that the intrusion must be limited to the protection of life and safety. The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to 911 call ends there. They do not have further permission to search premises or otherwise intrude on resident's privacy or property. In Dedman, supra, at p. 35, Le Dain J. stated that the interference with liberty must be necessary for carrying out the police duty and it must be reasonable. reasonable interference in circumstances such as an unknown trouble call would be to locate the 911 caller in the home. If this can be done without entering the home with force, obviously such course of action is mandated. Each case will be considered in its own context, keeping in mind all of the surrounding circumstances. [31] Also relevant to this issue is R. v. Norris, 2010 ONSC 2430 (CanLII) where, in response to report of domestic assault, the police forcibly entered home by kicking in the door. One of the issues raised was whether telephone call to the police by third person respecting alleged criminal activity in another residence was sufficient to invoke the same or similar emergency response as 911 call. Stach, J. stated: [15] While it is true that 9-1-1 call must be treated from the outset as “distress” call it does not follow from this that all information which finds its way to the police by other means cannot constitute circumstances of distress. In my view it is the substance of the information in the hands of the police and its analysis that needs to be questioned rather than the precise means by which that information comes into the hands of the police. It is contextual analysis. [32] Twice her mother had told the police that Nadine Shaw had been abused. They had no reason to disbelieve her. The police themselves considered Mr. Timmons to be violent for reasons separate from this incident. While Nadine, the alleged victim, had assured the police on the telephone that she was fine and had arranged for drive home, other information she gave or did not give, was concerning. She refused to tell the police where she was. She hung up on the police and did not answer when they called back. Nadine could have been threatened to respond in these ways which made it more difficult for the police to find her. [33] Nadine gave wrong name for the person she said was to pick her up. The officers could not get confirmation that anyone had picked her up and removed her from the home to safety. In fact, she never was picked up. She was still on the premises when they arrived after midnight, having been trying to locate her for two hours in an isolated countryside. [34] In the circumstances, it was reasonable for the police to believe that something was or could be wrong, and they should find and see her in case Nadine required protection or rescue. Their proceeding to and attendance at Mr. Timmons’ home were actions taken within the course of the police duty to “protect life”. [35] In my view, when this matter is considered in context, keeping in mind all of the surrounding circumstances, it was reasonable for the police to search for the alleged victim and to go to Mr. Timmons’ home. At the Door [36] Although Nadine Shaw had told the police at the door that she was fine, her statements could have been involuntary and made pursuant to threats of violence. At this point, she was still inside with the person reported to have abused her, and possibly under his control. [37] At 20 of Godoy, Lamer, C.J. could not accept that the police should simply take the word of the person who answers the door that there is no problem inside. While he was referring to someone other than the alleged victim, the same concerns can arise when that person is the alleged victim. Here it was reasonable for the police to stand their ground. Their alternative was to accept what Nadine said at the door at face value and simply leave. If they had done so, the officers could have been abandoning an alleged victim of abuse in the company of her alleged abuser and in remote and secluded location, without ever seeing or speaking with her alone. Police Entry [38] In his voir dire decision, the trial judge stated that in the circumstances, including the perceived scream, the police had a responsibility to enter the residence, whether invited or not, and that their warrantless entry, search of Mr. Timmons’ person, and search of his house did not breach his s. 8 Charter right against unreasonable search and seizure. [39] With respect, disagree with the judge’s analysis of the police entry. [40] Four R.C.M.P. officers, with their firearms or Taser out of their holsters and at the low ready position, were at the scene. So was an unarmed auxiliary constable. They had positioned themselves at two entrances to the house. When the police demanded, Nadine came and opened the door. She was the person who had been reported as having been abused by Mr. Timmons. [41] If the police were concerned that her assurances that all was well might not be genuine or made of her own free will, they could have asked Nadine to step outside the house. The police could then have questioned her face to face and away from any possible influence by Mr. Timmons. [42] If she had been in any danger, Nadine then could have simply left with the five officers. She had been located and was safe with them. There would have been no reason or need to enter the residence. [43] The police had no information that there was anyone in the house other than Mr. Timmons and Nadine Shaw. However if, because of the perceived scream or otherwise, they were concerned that there might be anyone else in the house who was in trouble, they could have obtained that information from Nadine Shaw, outside the house. They could also have asked whether there were any firearms or weapons there. If she said that there was someone who needed assistance, the officers would have reasonable grounds to believe that that person’s safety was risk. They then would have been justified in entering the house to locate and protect him or her. [44] If Nadine refused to step outside the house when asked, the police might have suspected that Mr. Timmons was threatening her from behind the door or farther away, and that he was armed. In that case, they would have had to decide how next to proceed. Depending on the circumstances, one reasonable option might well be warrantless entry with the object of protecting Nadine’s safety. [45] But the police did not ask Nadine to step outside the house. Instead three officers entered. Nadine Shaw told them that she was fine. There was no one nearby or who was interfering with their conversation. The only person in view was man lying on bed in bedroom. There was no evidence that he either moved or reached for something suddenly, or indeed at all. Nevertheless the police went straight into the bedroom, had him get up, did pat-down search to which the man cooperated, and then proceeded to search his house. [46] In my view, the trial judge erred in principle by failing to consider alternatives to the warrantless entry of Mr. Timmons’ home and bedroom, and the search of his home. [47] In fulfilling their duties to prevent death and serious injury, the police are often required to make rapid assessments and decisions in potentially dangerous situations. However, they must always include in their considerations the rights set out in the Charter. Chief Justice Lamer’s statements in 22 of Godoy, where he emphasized that the intrusion into dwelling to ascertain the safety of caller was limited to the protection of life and safety, are instructive and clear. repeat: The police have authority to investigate the 911 call and, in particular, to locate the caller and determine his or her reasons for making the call and provide such assistance as may be required. The police authority for being on private property in response to 911 call ends there. They do not have further permission to search premises or otherwise intrude on resident’s privacy or property. [48] In his submissions to the trial judge, counsel for Mr. Timmons emphasized and quoted this passage from Godoy. While the judge referred to Godoy in his reasons, he made no mention of this principle. It does not appear that he considered it in deciding that the police entry without warrant was justified. [49] As to the pat-down search, in R. v. Mann, 2004 SCC 52 (CanLII) the Supreme Court of Canada considered searches incidental to the police power of investigative detention. Such searches are warrantless and presumed to be unreasonable unless they can be justified and found reasonable pursuant to the test in Collins, described earlier. Iacobucci, J, writing for the majority, noted the importance of maintaining distinction between search incidental to arrest (such as in R. v. Golden, 2001 SCC 83 (CanLII)) and search incidental to an investigative detention. 37 The latter does not give license to officers to reap the seeds of warrantless search without the need to effect lawful arrest based on reasonable and probable grounds, nor does it erode the obligation to obtain search warrants where possible.” 40 The general duty of officers to protect life may, in some circumstances, give rise to the power to conduct pat-down search incident to an investigative detention. Such search power does not exist as matter of course; the officer must believe on reasonable grounds that his or her own safety, or the safety of others, is at risk. The officer’s decision to search must also be reasonably necessary in light of the totality of the circumstances. It cannot be justified on the basis of vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition. [50] The judge’s failure to consider alternatives short of police entry and search of person and home without authorization by warrant led to his finding that there had been no violation of the s. Charter right to be secure against unreasonable search and seizure. Having determined that there was no Charter breach, he did not consider s. 24(2) of the Charter. [51] In certain circumstances, an appellate court can proceed with s. 24(2) analysis. In R. v. Caputo (1997), 1997 CanLII 1636 (ON CA), 114 C.C.C. (3d) 1, 98 O.A.C. 30 (C.A.), Rosenberg, J.A. commented: 36. The trial judge did not consider the application of s. 24(2) of the Charter because, in his view, there was no ongoing violation of the appellant's rights at the time that statements #5 and #6 were made and because he determined that the earlier violations did not taint the subsequent collection of evidence. In my view, the trial judge erred in adopting that approach and, consequently, this court is required to consider the application of s. 24(2). This court is in as good position as the trial judge to make the necessary determination under s. 24(2). The evidence concerning the appellant's detention and subsequent arrest was undisputed and, as such, it is only necessary that this court draw the appropriate inferences from this evidence and the findings of fact made by the trial judge. [Emphasis added.] [52] See also R. v. Squires, 2005 NLCA 51 (CanLII), 199 C.C.C. (3d) 509, where the Court of Appeal concluded that the trial judge had erred by failing to engage the s. 24(2) analysis. In rejecting Squires’ argument for new trial, Mercer, J.A. writing for the court stated that it had the record of the pre‑trial applications and therefore could determine whether certain item ought to have been admitted in evidence at trial. As authority for appellate courts undertaking the s. 24(2) analysis, he referred to, for example, R. v. Laurin (1997), 1997 CanLII 775 (ON CA), 113 C.C.C. (3d) 519 (Ont. C.A.); R. v. Smith (1998), 1998 ABCA 418 (CanLII), 219 A.R. 109 (Alta. C.A.). [53] In R. v. Ngai, 2010 ABCA 10 (CanLII), 251 C.C.C. (3d) 533, the trial judge determined that there had been no s. breach and therefore did not proceed to s. 24(2) analysis. In the course of its decision, the Court of Appeal observed: 27 while no oral arguments had been made at trial on the section 24(2) analysis, counsel for both the Crown and the appellant had filed written submissions on the point. 31 At trial, evidence was adduced during the voir dire to deal with both the issue as to whether or not there had been section breach and also if so, should the evidence be excluded pursuant to section 24(2). [54] Caputo, Squires and Ngai establish that, where the trial judge has not done so, it is permissible for an appellate court to conduct s. 24(2) analysis when the record is sufficient. When the record is not complete, an appellate panel may send the matter back for new trial. See, for example, R. v. Le, (1996), 181 A.R. 107 (C.A.) where the record was complicated due to the bifurcation of the s. and 24(2) arguments, with the latter to proceed only if and after the s. breach was established. [55] In the case before us, we have transcript of brief oral defence submissions on s. 24(2), but no Crown submissions, as the trial judge told the Crown they were not necessary. We have no copies of any written submissions on s. 24(2) to the judge. In this court, the Crown made submissions on s. 24(2) but the defence (appellant) said very little on the topic and requested that the matter be remitted for retrial. The voir dire decision did not find it necessary to discuss s. 24(2). As result, we have little guidance from the trial judge on the s. 24(2) analysis. In my view, this is not case where it is appropriate for the Court of Appeal, at first instance, to engage in the delicate balance of s. 24(2) analysis. Disposition [56] To dispose of the appeal, it is unnecessary to discuss the second and fourth issues mentioned earlier. I would grant leave to appeal, and allow the appeal. I would set aside the conviction. Any retrial shall be at the option of the Crown and, if held, shall be before different judge. Oland, J.A. Concurred in: Fichaud, J.A. Farrar, J.A. NOVA SCOTIA COURT OF APPEAL Citation: R. v. Timmons, 2011 NSCA 39 Date: 20110505 Docket: CAC 329645 Registry: Halifax Appellant William Tracy Timmons v. Her Majesty the Queen Respondent Revised Judgment: The text of the original judgment has been corrected according to this erratum dated May 18, 2011. Judges: Oland, Fichaud and Farrar, JJ.A. Appeal Heard: November 15, 2010, in Halifax, Nova Scotia Held: Leave to appeal is granted, the appeal is allowed and the conviction is set aside per reasons for judgment of Oland, J.A.; Fichaud and Farrar, JJ.A. concurring. Counsel: Ralph W. Ripley, for the appellant Monica McQueen, for the respondent [57] In 9, line one, replace “Cst.” with “Cpl”.

The police responded to a call from a woman identified as the defendant's girlfriend's mother to the effect that her daughter was being abused. Initially unable to locate the residence, they spoke to the girlfriend on the phone, who advised them that she was fine and did not require the police. They nevertheless continued to the residence, where they heard a scream from inside. Knowing that the defendant was a suspected drug dealer and potentially violent, they demanded entry into the home. The daughter opened the door and told them everything was fine, there had been no assault and she had simply wanted a ride home. From where they entered, the officers could see a person lying down in the bedroom. They approached the man, searched him for officer safety and then conducted a warrantless search to locate any other occupants. During the search, certain items were noted that caused them to obtain a search warrant, following which drugs were found. The defendant's argument that the search was illegal was unsuccessful as the court found that, in these particular circumstances, the police had a responsibility to enter the home without a warrant, do a pat down search of the accused and search for other occupants. Once drugs were seen in plain view, they proceeded to obtain a search warrant. Judicial notice was taken of the fact that complainants in domestic situations often recant due to threats of coercion by their partners. The defendant appealed. Appeal allowed; conviction set aside; although a violation of the defendant's Charter rights had occurred, the record was insufficient for this court to engage in a s. 24(2) analysis. Although it was reasonable, in the circumstances, for the police to search for the girl, go to the defendant's home and not simply leave once she told them she was fine, the trial judge erred in failing to consider alternatives short of police entry (such as conferring with the girl after they had her step outside and close the door) and the search of the home, without a warrant. Police authority to investigate such a call includes locating the alleged victim and determining if their assistance is required, but, without more, does not extend to the entry or search of the premises.

b_2011nsca39.txt

SCC/jmj 2003 SKQB 257 Q.B.G. A.D. 2003 No. 733 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH BETWEEN: GLORIA TRUITT and GLORIA TRUITT as Litigation Guardian of TARYN TRUITT and SASKATCHEWAN WORKERS’ COMPENSATION BOARD RESPONDENT Gregory A. Thompson for the applicant Wayne P. Dale for the respondent JUDGMENT ALLBRIGHT J. June 4, 2003 [1] The applicant, by way of notice of motion seeks the following relief: a. An Order by way of certiorari, pursuant to Rule 664 of the Queen’s Bench Rules of Court, to quash the decision of the Workers’ Compensation Board dated November 20, 2002; b. An Order by way of mandamus, pursuant to Rule 674 of the Queen’s Bench Rules of Court, remitting the matter of the Applicants’ claim for benefits back to the Workers’ Compensation Board of Saskatchewan to be dealt with according to law; c. Costs of this Application. [2] The notice of motion, in support of the application, sets forth the following grounds: i. That the Workers’ Compensation Board of Saskatchewan acted outside of the jurisdiction prescribed to it in The Workers’ Compensation Act, 1979, R.S.S. W-17.1, when it denied the Applicants’ claim for compensation, based upon its finding that Mr. Truitt’s death was not compensable, because he was not found dead within the meaning of section 30 of The Workers’ Compensation Act, 1979. ii. That the Workers’ Compensation Board of Saskatchewan acted outside of its jurisdiction, as prescribed in The Workers’ Compensation Act, 1979, R.S.S., W-17.1, when it failed to apply statutory presumptions in favour of Gloria Truitt and Taryn Truitt; and iii. The Workers’ Compensation Board of Saskatchewan took into account irrelevant considerations in its decision of November 20, 2002. [3] In advance of the hearing, Mr. Dale, as counsel for the Saskatchewan Workers’ Compensation Board, filed with the court the “appropriate Return” pursuant to Rule 669(3). The Relevant Rules of Practice and Procedure [4] The relevant Rules of Practice and Procedure relating to judicial review are: 664(1) An application for judicial review by way of mandamus, prohibition, quo warranto, certiorari or to quash proceedings may be commenced by notice of motion. (2) In an application for judicial review, other than proceeding to which the Criminal Code applies, an applicant may claim: (a) declaration as collateral or alternate relief; or (b) an injunction or damages as collateral relief; and the court may grant such relief if it considers that having regard to all the circumstances of the case it would be just and convenient to do so. (3) Every application shall state the grounds on which it is made and the relief sought. 669(3) On receiving notice of motion so endorsed, the court, tribunal or other authority shall return forthwith to the court the conviction, order, decision, (or as the case may be) and reasons therefor together with the process commencing the proceeding, with certificate in the following form: “Pursuant to notice in these proceedings herewith return to this Honourable Court the following papers and documents, that is to say, (1) the conviction, order or decision (or, as the case may be) and the reasons therefor; (2) the process commencing the proceeding and the warrant issued thereon; and hereby certify to this Honourable Court that have above truly set forth all the papers and documents in my custody or power to be returned to this Honourable Court pursuant to the notice.” (Name, set out legibly, and signature.) 674 Where the court is satisfied that there are grounds for quashing or declaring void decision to which the application relates, the court, in addition to granting such relief, may remit the matter to the court, tribunal or other authority concerned with the direction to rehear it or to reconsider it and reach decision according to law. [5] In decision dated November 20, 2002, the respondent, Saskatchewan Workers’ Compensation Board, dismissed the applicant’s claim which had been brought forth both on her own behalf and on behalf of Taryn Truitt for compensation for the death of Scott Truitt on March 2, 1998. [6] The facts giving rise to the instant application are not particularly in dispute. [7] Scott Truitt was Gloria Truitt’s husband and Taryn Truitt’s father. He passed away while working at St. Thomas More College at the University of Saskatchewan on March 2, 1998. At the time of his death he was master’s student who also worked as student assistant in order to earn some income while completing his studies. He would have expected to have completed his master’s degree at the end of the spring session in 1998. [8] On March 2, 1998, in the morning, Scott Truitt, became ill during the course of teaching class at St. Thomas More College at the University of Saskatchewan. He displayed flu-like symptoms, including headache, nausea and vomiting. With the assistance of his students Mr. Truitt was escorted to the faculty lounge. While in the lounge student service advisor, Claude Lang, attended to Mr. Truitt. Mr. Lang left him in the lounge while he departed to conduct personal business and to make arrangements for Mr. Truitt to be picked up and taken home. Upon his return to the lounge, approximately 30 to 45 minutes later, Mr. Lang discovered that Mr. Truitt was no longer present and he went to find him. Mr. Lang went to the faculty washroom and found the door locked. He opened it with key and found Mr. Truitt lying on his back on the floor of the faculty washroom. Mr. Truitt was unconscious and “looking blue with no breathing”. This occurred at about 9:30 a.m. [9] Mr. Lang administered CPR on Mr. Truitt for approximately five minutes during which, female student stopped to assist him, however they were unable to revive Mr. Truitt. [10] Emergency Medical Technicians arrived on the scene shortly after the call from Mr. Lang. They continued to attend to Mr. Truitt for approximately one-half an hour, and then transported him to Royal University Hospital. The Emergency Medical Technicians were unsuccessful in resuscitating Mr. Truitt. At the Emergency Department at Royal University Hospital, the ambulance report indicates that there were “no life signs” at the scene “unchanged O/A at RUH”. [11] Further attempts occurred at Royal University Hospital to revive Mr. Truitt, however these attempts were unsuccessful and he was pronounced dead by Dr. Lipka at 11:36 a.m. [12] Following Mr. Truitt’s death, his employer, the University of Saskatchewan, did not notify the Workers’ Compensation Board regarding his death. Mrs. Truitt was not advised by anyone that she and her daughter might have any potential entitlement to receive benefits from the Board as result of the death of Mr. Truitt. Accordingly in the period of time immediately following Mr. Truitt’s death, she did not submit an application for benefits to the respondent Board. [13] Ultimately, an application for dependants’ benefits was submitted to the Saskatchewan Workers’ Compensation Board by a representative, Mr. Alex Taylor, on behalf of the applicant, on July 16, 2001. [14] Gloria Truitt had become aware of the potential rights in early July 2001 during casual conversation at her workplace. It was suggested to her that because Mr. Truitt’s death took place while he was performing work duties at the University of Saskatchewan, and not while he was on campus to attend class or to study that there might be an entitlement to benefits. It was shortly thereafter, that the claim was submitted. [15] In an internal memorandum prepared by Allan Basnicki of the Workers’ Compensation Board, dated September 14, 2001, it is first documented that Gloria and Taryn Truitt’s claim was going to be disallowed. In this memorandum, the following is noted: .AGREE THAT SCT 30 DOES NOT APPLY. THE PURPOSE OF THAT SCT IS THAT THE WORKER IS UNABLE TO ADVISE WHAT HAPPEN [sic] TO CAUSE THE DEATH AND THEIR [sic] ARE NO WITNESSES TO IT. The memorandum also notes that: .IT IS QUITE CLEAR WORKER OBSERVED BY OTHERS OF WHAT WAS THE EVENTUAL CAUSE OF DEATH. SO THIS WAS WITNESSED. [16] Through correspondence dated September 18, 2001 the applicant was advised for the first time that the Board was unable to accept responsibility for Mr. Truitt’s death because Mr. Truitt had not been “found dead at work”. The applicant thereupon notified the Board on October 14, 2001 that she wished to appeal the September 18, 2001 denial of her claim, and on October 29, 2001, the Board issued a formal written decision, denying Gloria Truitt’s appeal because “Mr. Truitt was not found dead at his place of employment on March 2, 1998.” No other ground was set forth as reason for denying the applicant’s claim. [17] At the applicant’s request, the Board held hearing to explore the claim further on March 21, 2002 in Regina, Saskatchewan. Alex Taylor attended at this meeting with the applicant, to act as her agent. [18] By correspondence dated May 8, 2002, Deb Roberts, assistant to the Board, advised the applicant that the Board members had reached an “impasse” with respect to the claim. Ms. Roberts advised that the applicant had two options: to have the Board conduct full review of the file, including review of the transcript from the March hearing, or to have full rehearing of the case, before full board panel, including two board members and the board chairman. [19] The applicant chose full board hearing and this occurred on July 31, 2002. [20] By letter of May 23, 2002 the Chairman of the Saskatchewan Workers’ Compensation Board wrote Mr. Taylor as the agent for the applicant in part as follows: As stated previously in the letter from Ms. Roberts dated May 8, 2002, the Board Members are at an impasse and are unable to resolve the appeal. Therefore, the full Board (Chair and Board Members) will hear the case, along with the Board’s legal counsel. Although you have argued this appeal under Section 30 of the legislation, the Board would like to discuss the application of Section 45 at the hearing. [21] Section 45 pertains to the statutory six month claims reporting. [22] On July 31, 2002, the applicant attended at the second hearing accompanied by Mr. Taylor and Mr. Thompson as counsel. In preparation for that hearing, the applicant’s counsel had obtained an opinion from Dr. J.R. Donat, MD, FRCPC, practising neurologist at the Department of Medicine at Royal University Hospital, University of Saskatchewan. After reviewing the autopsy report, the ambulance attendant’s report and the emergency room reports, Dr. Donat concluded that Mr. Truitt “suffered subarachnoid hemorrhage from Berry aneurysm” and that “it is unequivocal that he died at work”. [23] On November 20, 2002, the Board released its decision, again denying the applicant’s claim for benefits for the death of her husband on her own behalf and on behalf of her daughter as dependants of Scott Truitt. The decision was based upon two alternative grounds: the delay in bringing the claim, and the fact that Mr. Truitt was not “found dead at work”. [24] On January 1, 2003, The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1, was amended and s. 30, relevant section, was affected by the amendment. [25] The issues raised by this application are as follows: (a) Did the Board act outside its jurisdiction in denying dependant benefits to the applicant based upon determination that the applicant’s deceased spouse was not “found dead” within the meaning of s. 30 of the Act? (b) Did the Board act outside its jurisdiction in not applying the presumption contained in s. 30 of the Act in favour of the applicant? (c) Were the Board’s determinations of November 20, 2002 relating to ss. 45 and 47 of the Act within its jurisdiction? Relevant Provisions of The Workers’ Compensation Act, 1979 [26] The applicable sections of The Workers’ Compensation Act, 1979, supra, are as follows: 19 Subject to subsection 21.1(4), the board shall sit at any time and conduct its proceedings in any manner that it considers advisable for the conduct of its business and affairs. 22(1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board and, without limiting the generality of the foregoing, the board shall have exclusive jurisdiction to determine: (a) whether any condition or death in respect of which compensation is claimed was caused by an injury; (b) whether any injury has arisen out of or in the course of an employment; (c) the existence and degree of functional impairment to worker by reason of an injury; (d) the permanence of functional impairment resulting from an injury; (e) the degree of diminution of earning capacity caused by an injury; (f) the average earnings; (g) the existence of the relationship of any member of the family of worker and the degree of dependency; (h) whether any industry or any part, branch or department of any industry is within the scope of this Act and the class to which it is assigned; (i) whether any worker is within the scope of this Act. (2) The decision and finding of the board under this Act upon all questions of fact and law are final and conclusive and no proceedings by or before the board shall be restrained by injunction, prohibition or other proceeding or removable by certiorari or otherwise in any court. 28 Where, in an industry, worker suffers an injury, he is entitled to compensation which shall be paid by the board out of the fund. 30 Where worker is found dead at place where the worker had right to be in the course of his or her employment, it is presumed that the worker’s death was the result of injury arising out of and in the course of his or her employment, unless the contrary is shown. [*The above s. 30 is the current wording of that section. This wording came into being as result of an amendment to The Workers’ Compensation Act, 1979, on January 1, 2003. The section existing prior to this amendment provided: 30 Where worker is found dead at place where he had right to be in the course of his employment, it is presumed that his death was the result of injury arising out of and in the course of his employment this particular provision was in place at the time of Mr. Truitt’s death.] 45(1) Subject to section 47, no compensation is payable to worker unless: (b) the claim for compensation is made within six months from the date he sustained the injury or, in the case of death, within six months from the date of death. 47 Failure to give notice mentioned in section 45 or any defect or inaccuracy in that notice does not bar the worker from compensation where the board considers that the claim for compensation is just and should be allowed. The Saskatchewan Worker’s Compensation Board’s Decision: Decision of November 20, 2002 [27] The respondent Board in its decision set forth detailed factual backdrop and catalogued the relevant provisions of The Workers’ Compensation Act, 1979. Thereafter the Board’s decision was follows: A. Application of Section 45 The application for dependent benefits was submitted to the Board over three years after the death had occurred and, on that basis alone, the claim for compensation could be denied. Section 45(1)(b) of the Act states: 45(1) Subject to section 47, no compensation is payable to the worker unless: b) the claim for compensation is made within six months from the date he sustained the injury or, in the case of death, within six months from the date of death. However, the inquiry does not end there, as the Board must consider the effect of Section 47, which reads: 47 Failure to give the notice mentioned in section 45 or any defect or inaccuracy in that notice does not bar the worker from compensation where the board considers that the claim for compensation is just and should be allowed. The Board sees that two interpretations could be given to the phrase “. .where the Board considers that the claim for compensation is fair and just. .” These two interpretations are: a) The justice of waiving the six-month limitation period involves an examination of the reasons for the delay. Are the reasons for the delay such that it would be just to allow the claim?; or b) Do the substantive merits of the claim lead to conclusion that the claim should be allowed in spite of the delay? As for the first interpretation of Section 47, there is little evidence as to why Ms. Truitt did not apply for benefits within the six-month period contemplated in Section 45. Her counsel indicated that she was unaware, and uninformed of her rights under the Act. Ms. Truitt, when asked by the Board for an explanation for the delay, offered that her husband was mostly student, although he also had teaching duties, and she just never thought of applying for benefits. The Board considers it likely that no claim was submitted within six months as neither the employer, nor Ms. Truitt believed that Mr. Truitt’s death was related to his employment. While the Board is sympathetic to Ms. Truitt’s circumstances, the Board does not see that there are compelling reasons for the delay that would warrant waiving the six-month limitation period contained in Section 45. The second possible interpretation of Section 47 involves an analysis of whether the circumstances of the death or injury are such that claim for compensation is clearly valid and compelling. In Ms. Truitt’s case it is the Board’s opinion that the claim for compensation is not just in that sense, as the cause of her husband’s untimely death was not his employment. The autopsy report clearly indicated that Mr. Truitt died as result of ruptured Berry Aneurysm. There is no evidence to indicate that the aneurysm and its subsequent rupture were related, in any way, to Mr. Truitt’s employment. In fact, medical evidence suggests that such condition is likely genetic, and the reasons for rupture are largely unknown. It is also worth noting that medical research has not established connection between sedentary activities, of the kind engaged in by Mr. Truitt, and the onset of ruptured aneurysm. In effect it appears to be mere happenstance that Mr. Truitt died at work rather than, for example, at home. It is for the above reasons that the Board does not feel it would be just to waive the six-month reporting requirement in Section 45 of the Act. Counsel for Ms. Truitt argued that the Board could no longer consider the issue of Section 45, as it had already ruled on the merits of her claim. The Board respectfully disagrees with this submission, as the decision of October 29, 2001 dealt with the narrow issue of whether or not Mr. Truitt was “found dead” within the meaning of Section 30 of the Act. B. Application of Section 30 In the alternative, the Board considered the application of Section 30 of the Act. It is the Board’s view that the purpose of Section 30 is to address those circumstances in which it is impossible to determine whether the death was work-related or not. This view is in keeping with the overall purpose and scheme of the Act and workers’ compensation principles in general. This purpose is to provide benefits to workers and their dependents for injuries or death caused by their employment. This principle is clearly stated in the full title of the Act: An Act to provide for Compensation to Workers for Injuries sustained in the Course of their Employment. The Board also notes that when the Act was amended in 1979, the basis for many of the changes was the 1978 Committee of Review Report authored by Mr. Justice Alistair Muir. At page 51 of this report the committee commented on the presumptive clause as it relates to death that occurred in the workplace: The fourth issue was the issue of death occurring at the place of work. The present legislation is based on presumption that if worker’s death occurs at his workplace, it shall be presumed that the death occurred because of work. Some concern was registered over this section of the Act. It is the committee’s belief that this concern is based on misunderstanding of the term “presumption”. This term is based on the expectation that there will be complete and thorough investigation. As such, if there is no evidence to show the cause of death, then it is assumed that he died in the course of his employment. If the evidence shows that the death is not work-related, then the claim is not accepted. An example of the type of situation to which Section 30 was intended to apply would be where lone shift worker arrives for midnight shift, and is discovered dead by fellow workers arriving for the morning shift. There is no evidence to connect the death to their employment, nor any evidence to establish that the death was not work-related. In short, no one knows of the circumstances leading up to the death of the worker. The Board must approach the application of Section 30 by firstly determining if the worker was “found dead”. In the case of Mr. Truitt, the Board finds that he was not found dead. The symptoms leading up to Mr. Truitt’s death were first present at approximately 8:30 a.m. on the morning of his death. Several students assisted Mr. Truitt and observed the symptoms that were being displayed at that time, namely severe headache and nausea. Mr. Claude Lang, who attended to Mr. Truitt while he was in the Faculty Lounge, also observed these symptoms, which were later identified as being consistent with the rupture of Berry Aneurysm. While Mr. Truitt was left alone for 30 to 45 minutes, in order to make arrangements to have him return home, the symptoms of his death were already observable prior to this, and the Board finds that Mr. Truitt was not found dead, within the meaning of the Act. There is no uncertainty as to the cause of his unfortunate demise. Based upon the foregoing application of Sections 45 and 47, or in the alternative Section 30, the appeal is denied. The noted decision was signed by the Chairman of the Workers’ Compensation Board and member of the Board. There was board member’s dissent which provided as follows: In my considered opinion, Mr. Truitt was ‘found dead’ at work, where he had right to be. This is supported by the evidence that the Student Services Advisor and the ER Team administered CPR with no resulting response as to breathing or other vital life signs. Accordingly, it is my opinion that Section 30 of the “Act” should apply. The court’s interpretation of this Section includes ‘conclusive presumption’, thus the cause of death is not rebuttable. Therefore, in my opinion, Section 30 would apply and Ms. Truitt would be entitled to compensation benefits. The appeal should be accepted. Analysis (a) Did the Board act outside its jurisdiction in denying dependant benefits to the applicant based upon determination of the applicant’s deceased spouse was not “found dead” within the meaning of s. 30 of the Act? [28] The Supreme Court of Canada considered the appropriate standard of review that is to be applied to decisions of the Saskatchewan Workers’ Compensation Board in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] W.W.R. 517. In that case, the court considered the privative clause found in s. 22 of the Act and, in light of that privative clause determined that the standard of review will generally be one of patent unreasonableness. This, however, is not the case when “the tribunal has made an error in the interpretation of legislative provision limiting the tribunal’s powers”. In other words, s. 22 does not shield the Board’s decision from judicial review when the Board exercises its discretion to decide matter but the legislation did not “intend to commit the matter exclusively to the Board”. [29] In Baker v. Canada (Minister of Citizenship and Immigration) (1999), 1999 CanLII 699 (SCC), 174 D.L.R. (4th) 193 (S.C.C.), Madam Justice L’Heureux-Dubé considered the standard of review to be applied to matters of discretion. At p. 226 she observed: .However, though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter. [30] Thus, while the Board does have discretion to create policy that enable it to carry out its statutory mandate, the policies must not take the Board beyond the discretion afforded to them by the statute. [31] In Henry v. Saskatchewan (Workers’ Compensation Board) (1999), 1999 CanLII 12241 (SK CA), 172 D.L.R. (4th) 73, the Saskatchewan Court of Appeal considered the standard of review that is properly applicable to s. 30 of the Act, and found it to be the correctness standard, rather than the patent unreasonable one. Chief Justice Bayda specifically reconciled this with the privative clause when he comments at p. 98 as follows: .while s. 22 vests the Board the tribunal with the exclusive power of determining whether worker’s death was the result of an “injury”, s. 30 limits that power where particular set of circumstances exists. It is obvious from the foregoing that it is the second and not the first proposition summarized in Bibeault [U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048] that applies to this case. Accordingly, the standard of review is the “mere error” of law standard and not the “patently unreasonable” standard. [32] Chief Justice Bayda further commented on the jurisdictional issue involving s. 30 wherein he comments in the following fashion at pp. 81-82: The jurisdictional issue raises this critical question: Where the facts as determined by the Board are that worker was found dead at place where he had right to be in the course of his employment, does s. 30 of The Workers’ Compensation Act, 1979 leave any discretion to the Board to determine whether the worker’s death was the result of injury arising out of and in the course of his employment? Section 30 reads as follows: 30. Where worker is found dead at place where he had right to be in the course of his employment, it is presumed that his death was the result of injury arising out of and in the course of his employment. Ordinarily, by reason of s. 22(1)(a) and (b) of the Act the Board would have complete discretion to make the determination of the matters stated in the presumption. Section 22(1)(a) and (b) read: 22(1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board and, without limiting the generality of the foregoing, the board shall have exclusive jurisdiction to determine: (a) whether any condition or death in respect of which compensation is claimed was caused by an injury; (b) whether any injury has arisen out of or in the course of an employment; The critical question, in effect, addresses itself to the limits, if any, s. 30 places on the “exclusive jurisdiction” bestowed by s. 22. If the answer to the critical question is “no” two things follow: (i) the Board has no jurisdiction to inquire into the circumstances of worker’s death for the purpose of determining whether the death was the result of injury arising out of and in the course of his employment; the resolution of that issue has been legislated and the Board is bound by that legislated resolution. (ii) evidence showing the category or kind of the worker’s death (e.g. accident or suicide) and evidence showing the cause of the worker’s death is irrelevant. [33] Chief Justice Bayda continues further at pp. 82-83 wherein he observes: In my respectful view, the wording of the enactment, its context and the purpose of the Act are all important considerations. approach the interpretation of s. 30 from that perspective. Any consideration of the wording requires clear understanding of the difference between an irrebuttable (sometimes called “conclusive”) presumption of law and rebuttable presumption. Sopinka, Lederman Bryant in The Law of Evidence in Canada (Toronto: Butterworths, 1992) capture that distinction in these excerpts: conclusive presumption is rule of substantive law clothed in the language of presumptions. For example, at common law it was conclusively presumed that child under seven was incapable of committing any criminal offence and proffered evidence that the child was capable of committing the offence was inadmissible. [34] At p. 97 Chief Justice Bayda offers the following conclusion: In the result, have concluded that the presumption housed in s. 30 is irrebuttable. answer the critical question posed at the start “no”. That section leaves no discretion to the Board to determine whether worker’s death was the result of injury arising out of and in the course of his employment where the facts, as determined by the Board, are that the worker was found dead at place where he had right to be in the course of his employment. It follows, the Board had no jurisdiction to inquire into the circumstances of Mr. Henry’s death for the purpose outlined and no jurisdiction to make determination contrary to the presumption. [35] In considering the issue of whether Mr. Truitt was “found dead” in the workplace within the meaning of s. 30 of the Act, am of the view that the majority decision of the respondent was such as to regard s. 30 as housing rebuttable presumption. This is particularly so in considering the evidence placed before the Board, including that of the ambulance records, hospital records and opinion of Dr. Donat. All of the evidence placed before the Board clearly indicates that Mr. Truitt was “found dead” at his place of work. No one was present at the time of Mr. Truitt’s actual passing and when last seen by anyone in the workplace, while he was experiencing discomfort, he was alive. When Mr. Lang next found Mr. Truitt, he was clearly deceased and accordingly found dead within the meaning of s. 30. To that end am in agreement with the minority decision of the respondent Board. Accordingly, whether one views the standard of review as correctness or patent unreasonableness, the decision of the majority of the Board is in error and subject to the reviewing jurisdiction of this court. Accordingly, I am of the view that the Board did act outside its jurisdiction in denying dependant benefits to the applicant based upon a determination that the applicant’s deceased spouse was not found dead within the meaning of s. 30 of the Act. The majority decision in Henry v. Saskatchewan (Workers’ Compensation Board), supra, clearly precludes approaching an analysis of s. 30 as in any way representing a rebuttable presumption. Rather the contrary is clearly articulated, s. 30, (as it was at the relevant time 1998) embodies an irrebuttable presumption. Therefore, any framework of analysis which commences to explore possible or probable causes of death runs afoul of the rationale as articulated by the majority decision of the Saskatchewan Court of Appeal. (b) Did the Board act outside its jurisdiction in not applying the presumption contained in s. 30 of the Act in favour of the applicant? [36] For the fundamental reasons set forth in the above analysis, I am of the view that the Board did act outside its jurisdiction in not applying the presumption in favour of the applicant. In pursuing the analysis, once it is presumed that the worker, in this case Mr. Truitt, was found dead in the workplace, the presumption contained in s. 30 must be applied in favour of the applicant. The Board’s failure to do so amounts to reviewable error of law. (c) Were the Board’s determinations of November 20, 2002 relating to ss. 45 and 47 of the Act within its jurisdiction? [37] Sections 45 and 47 of the Act, in short, provide limitation period for an application for benefits, and the attendant discretion to the Board to waive this period. [38] The Saskatchewan Court of Appeal in Goertzen v. Saskatchewan (Workers’ Compensation Board) (2002), 2002 SKCA 125 (CanLII), 227 Sask. R. 146 dealt with the interpretation of s. 21(5) of The Workmen’s Compensation (Accident Fund) Act, R.S.S. 1930, c. 303 (the “1930 Act”) which was similar to the current s. 47. Mr. Justice Cameron on behalf of the court comments upon the factual backdrop at p. 147 in the following fashion: On January 30, 1950, Issac Fehr, 23 year-old man employed as log roller by Carrot River sawmill and planing company, collapsed and died on the job. According to fellow worker, he and Mr. Fehr had rolled log and were walking back to the log pile when Mr. Fehr fell to the ground. The two of them had been doing their usual work of rolling logs with cant hooks and nothing out of the ordinary had occurred. Forty seven years later, on July 21, 1997, Mr. Fehr’s wife, Mary Goertzen, applied to the Workers Compensation Board for compensation. [39] The court further comments at p. 152 in the following fashion: We might add, having regard for the two remaining grounds upon which the application to the Court of Queen’s Bench was made, that we can see nothing in either of them to warrant upholding the decision of the chamber judge on that basis. We might also add that, in light of the passage of time, it was open to the Board throughout to act on subsection 21(5) of the Act. Indeed compensation for Mr. Fehr’s death could not have been paid unless the Board, in exercise of the discretionary power conferred upon it by subsection 21(5), was of the opinion the claim was “just one and should be allowed.” The combined effect of this and the patently unreasonable standard of review leaves no room for interference with the decision of the Board. [40] am of the view that the current situation is distinguishable from that in Goertzen v. Saskatchewan (Workers’ Compensation Board), supra. [41] In this instance the applicant’s claim was promptly brought once she became aware of her right to do so. The applicant provided an explanation for delay in bringing the matter. From the outset, the Board canvassed the claim being aware of the fact that the claim was brought outside of the six month prima facie limitation period. [42] After denying the claim on two occasions, in September and October of 2001, without any mention of the issue of delay, the respondent Board held first oral hearing to further assess the merits of the claim. Following this hearing, the Board acknowledged that it had reached an “impasse” about the claim and invited the applicant to participate in second hearing before larger panel of three Board members including the chairperson. [43] The initial hearing, as noted earlier, occurred on March 21, 2002. Section 45 and the six month limitation was not raised in any fashion at that hearing or in the steps leading up to the March 21, 2002 hearing. The issue of delay (s. 45) arose for the first time after the applicant requested full board hearing following the impasse arising out of the March 21, 2002 hearing. As noted, at the second hearing, resulting in an adjudication, s. 45 and s. 47 were substantively relied upon by the Board. [44] In Goertzen v. Saskatchewan (Workers’ Compensation Board), supra, the issue of delay was raised at the stage of both the appeal committee and the Board’s initial written decision, as well as in the decision under review and the certiorari application giving rise to the court process. That situation is markedly different from what occurred in the instant case wherein the Board on October 29, 2001, in written decision dismissed the claim without mentioning that delay was in any way substantive reason for doing so. The Board’s October 29, 2001 decision deals with the issue of the application of s. 30 to the progression of events leading up to Mr. Truitt’s death. That decision in its entirety provides as follows: An appeal has been received by Ms. Gloria Truitt, surviving spouse of Mr. Scott Truitt. Ms. Truitt is appealing the Board’s decision to deny her husband’s claim, under Section 30 of the Workers’ Compensation Act. Mr. Truitt was working at the University of Saskatchewan as Master student at St. Thomas Moore [sic] College on March 2, 1998. While teaching class he felt ill and left the classroom with the help of students who took him to lounge. His symptoms at that time included headache, vomiting and flu-like symptoms. He was left alone for approximately 30 to 45 minutes while arrangements were made to get him and his vehicle home. He was found in locked washroom, lying on the floor apparently unconscious. CPR was performed by colleague and then by First Responders before transferring him to the Royal University Hospital where he was pronounced dead. An autopsy report showed Mr. Truitt had berry aneurysm of the right middle cerebral artery which caused his death. Client Services has determined Mr. Truitt’s family is not entitled to any benefits as Mr. Truitt passed away as result of congenital aneurysm. Section 30 of the Act states, “Where worker is found dead in place where he had right to be in the course of his employment, it is presumed that his death was the result of injury arising out of and in the course of his employment.” Mr. Truitt was not “found dead” at his place of employment on March 2, 1998. He presented with symptoms while he was still in the classroom and he was taken to the faculty lounge. These symptoms were indicative of the congenital aneurysm which was later determined to have caused his death. As Mr. Truitt was not found dead and there were witnesses at the time of his symptomology, Section 30 of the Act does not apply. The appeal is denied. [45] In this instance, the Board’s ultimate decision, as well as preliminary decisions leading to it, demonstrate that the respondent Board delved into the merits of the claim in variety of ways, including collection of background information, and by holding two oral hearings. Even after the second hearing, where the respondent Board raised the delay issue for the first time, the Board continued to solicit further medical information, again illustrating that it was substantively considering the merits of the applicant’s claim. [46] I am of the view, for the foregoing reasons, that the Board has waived the right to rely upon the delay in bringing the claim. Here, the Board participated in a variety of levels of proceeding, including two hearings, and only raised the issue of delay at the final hearing. This cumulative conduct in my view amounts to waiver by the respondent. [47] Accordingly, have concluded that it was not open to the Board as part of its concluding process to deny the applicant’s claim based upon ss. 45 and 47. [48] In the event that am wrong in my perception of the principle that the Board has waived the right to raise this issue, am of the alternative view that in any event the Board’s decision involving delay was patently unreasonable. [49] The Board’s decision suggests that the phrase “where the Board considers that the claim for compensation is fair and just” in s. 47 of the Act is subject to two possible interpretations: (a) The justice of waiving the six month limitation period involves an examination of the reasons for the delay. Are there reasons for the delay such that it would be just to allow the claim? or (b) Do the substantive merits of the claim lead to conclusion that the claim should be allowed in spite of the delay? [50] In considering the first of these potential interpretations, the Board does not appear to consider the full impact of the fact that the applicant was unaware of her right to apply for such benefits. Her husband’s employer neither notified the Board of Mr. Truitt’s death nor did it explain to Ms. Truitt that she had right to consider potential claim under the legislation. The Act in fact mandates that an employer is required to report injuries which may prevent an employee from working. Despite the clear onus and significant reporting responsibility that the Act places upon employers, the omission by Mr. Truitt’s employer to report the claim or to advise Ms. Truitt of her right to do so was not considered in examining the question of whether Ms. Truitt had demonstrated justifiable excuse for the delay. [51] Further, the Board states that it “considers it likely that no claim was submitted within the six months as neither the employer, nor Ms. Truitt believed that Mr. Truitt’s death was related to his employment”. This comment appears to be contrary to the proposition in Henry v. Saskatchewan (Workers’ Compensation Board), supra, wherein it is established that it does not matter whether worker’s employer or his dependants believe that worker’s death was related to his employment, as circumstantial, medical, and opinion evidence to that end is irrelevant when worker is found dead. [52] In determining that it would not be just to waive the six month reporting requirement in s. 45 of the Act, the Board focuses on its belief as to the cause of Mr. Truitt’s death, an inquiry which the presumptive portion of s. 30 indicates should not occur. [53] The applicant has demonstrated an entitlement to an order by way of certiorari, pursuant to Rule 664 of the Queen’s Bench Rules of Court, quashing the decision of the Workers’ Compensation Board dated November 22, 2002, and further for an order by way of mandamus, pursuant to Rule 674 of the Queen’s Bench Rules of Court, remitting the matter of the applicant’s claim for benefits back to the Workers’ Compensation Board of Saskatchewan to be dealt with according to law, and so order. Further, there shall be an attendant order of mandamus compelling the Board to perform its statutory duty to apply the presumption set forth in s. 30 of The Workers’ Compensation Act, 1979, supra, in the applicant’s favour. [54] The applicant shall have her costs of the motion, on a party and party basis, to be taxed. [55] Order accordingly.

The deceased was a master's student who also worked as a student assistant at the University of Saskatchewan. He became ill while teaching a class. His students helped him to the faculty lounge. He was found in the faculty washroom unconscious and not breathing approximately 30 minutes later. Emergency medical technicians were not able to resuscitate him and he was pronounced dead at the Royal University Hospital. An application for dependants' benefits was submitted over 3 years later. The Workers' Compensation Board denied the claim finding that the deceased was not found dead at work and because of the delay in bringing the claim. The applicant brought an application for an order of certiorari pursuant to Queen's Bench Rule 664 and mandamus pursuant to Queen's Bench Rule 674. HELD: 1) The Board acted outside of its jurisdiction in denying dependant benefits to the applicant based upon a determination that the deceased was not found dead within the meaning of s. 30 of The Workers' Compensation Act, 1979. The case law clearly precludes an analysis of s. 30 of the Act as in any way representing a rebuttable presumption. 2) The Board acted outside its jurisdiction in not applying the presumption in s. 30 of the Act in favour of the applicant. 3) The Board waived the right to rely upon the delay in bringing the claim after the Board participated in a variety of levels of proceeding, including two hearings, and only raised the issue of delay at the final hearing. 4) The application was allowed with costs to the applicant on a party and party basis.

3_2003skqb257.txt

J. Date: November 20th, 2000 Docket: S.H. 162867 2000 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: GEORGE EDDY COMPANY LIMITED and MUNICIPALITY OF THE COUNTY OF ANNAPOLIS and ALBERT M. DUNPHY, Development Officer for the Municipality of the County of Annapolis RESPONDENTS DECISION HEARD: in Special Chambers at Halifax, before the Honourable Associate Chief Justice Michael MacDonald ORAL DECISION: July 6, 2000 DATE OF WRITTEN DECISION: November 20th, 2000 COUNSEL: Robert G. Grant, Q.C. J. Scott Barnett Stewart McKelvey Stirling Scales for the Applicant W. Bruce Gillis, Q.C., Durland Gillis Parker Richter for the Respondents [1] The Applicant land developer after applying for but failing to receive final subdivision approval looks to the Court for relief including: a. An order in the nature of certiorari quashing the development officer’s decision that the application was incomplete, b. declaration that the application is in fact complete, and c. An order of mandamus directing the development officer to issue the final approval. [2] The facts are neither complicated nor in dispute. The Applicant owns large tract of land surrounding Lower Lake Sixty in Annapolis County. In the summer of 1996, the Applicant began the process of first consolidating and then subdividing this land into approximately 25 lots. The Applicant applied for tentative subdivision approval in October of 1997 and received the same on March 16, 1998. Shortly thereafter in April of 1998, the Municipality passed new subdivision by-law requiring higher road standards. [3] After several initial attempts the Applicant submitted its last plan for final approval on March 14, 2000. The next day, the application was determined by the development officer to be incomplete for essentially two reasons: 1. It failed to meet the newly incorporated road standards, and 2. one of the bearings on the plan was missing. [4] While the missing bearing on the plan was and is of no great consequence, the requirement to meet the new road standard represented major obstacle for the Applicant. It means much more expensive road construction process. The Applicant takes the position that because it received tentative approval before the new road standard was incorporated, its application should be grand-parented and it should only have to meet the road standards as they existed at the time it received the tentative approval. The Applicant, therefore, takes issue with the development officer’s decision to declare the application incomplete and looks to this Court for relief. THE CERTIORARI APPLICATION (i) The Scope of Judicial Power [5] will deal with the certiorari application first. My analysis begins with the scope of judicial review. The Applicant insists that as matter of law it had right to have the final approval granted without meeting the higher road standards. The Applicant relies on the grand-parenting section of the new Municipal Government Act. Section 283 is the relevant provision. It states: Tentative plan of subdivision 283 Where tentative plan of subdivision is approved pursuant to the subdivision by-law, lot or lots shown on the approved tentative plan shall be approved at the final plan of subdivision stage, if (a) the lots are substantially the same as shown on the tentative plan; (b) any conditions on the approval of the tentative plan have been met; (c) the services to be constructed have been constructed and accepted by the municipality or acceptable security has been provided to the municipality to ensure the construction of them; and (d) the complete application for final subdivision plan approval is received within two years of the date of the approval of the tentative plan. 1998, c. 18, s.283 [6] The Applicant submits that it met all applicable conditions of s. 283 and therefore submits that the plan “shall” be approved. The development officer has a different interpretation. In any event, the Applicant insists that because this entire case involves the interpretation of piece of legislation, it is pure question of law commanding no deference to the development officer. The Municipality agrees that this exercise involves essentially question of law, but submits that given the nature of the Act and the development officer’s presumed expertise, certain deference should be paid to his interpretation. agree with the Applicant on this point. Applying the guidance of Bastarache, J. in Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] S.C.R. 982, the development officer’s decision in the circumstances of this case is on the low end of the deference spectrum (being decision involving statutory interpretation). The development officer’s expertise would not be extended into that area. find the standard of review therefore to be that of correctness. (ii) Merits of the Application [7] The Applicant insists that s. 283 speaks for itself and the plan shall be approved if sub-clauses a, b, c, and are met. will now review the four criteria: (a) the lots are substantially the same as shown on the tentative plan; [8] Having reviewed these plans, agree with Applicant and find that the lots are substantially the same as shown on the tentative plan. (b) any conditions on the approval of the tentative plan have been met; [9] find that all conditions of any consequence have been met. (c) the services to be constructed have been constructed and accepted by the municipality or acceptable security has been provided to the municipality to ensure the construction of them; [10] The Municipality submits that this provision speaks about municipal requirements at the time of final approval which would include the new road standards. The Applicant on the other hand submits that this subsection applies to services required at the time the tentative plan was approved. agree with the Applicant on this issue. The subsection refers to the services “to be constructed”. This speaks to the future and therefore can only apply to requisite services at the time the tentative plan was approved. (d) the complete application for final subdivision plan approval is received within two years of the date of the approval of the tentative plan. [11] The Application in the case at bar was submitted just within the two year mark. According to the development officer it was complete application subject to two requirements: (1) The failure to comply with the new road standards and, (2) the completion of one of the courses on one of the lots in the plan. The second requirement appears to be, by all accounts, inconsequential. The first requirement is the very subject matter of this hearing. [12] Having ruled in the Applicant’s favour on this issue, find therefore that all aspects of s. 283 have been met and the Applicant would have been entitled to final approval. [13] In reaching this conclusion, note the Municipality’s reliance on s. 278 of the Municipal Government Act in its submission that the higher road standards are applicable to this Application. Specifically, the Municipality relies upon subsections 278(1), (2)(f) and (g) which provide as follows: (1) An application for subdivision approval shall be approved if the proposed subdivision is in accordance with the enactments in effect at the time complete application is received by the development officer. (2) An application for subdivision approval shall be refused where (f) the proposed subdivision does not meet the requirements of the subdivision by-law and no variance is granted; or (g) the proposed subdivision is inconsistent with proposed subdivision by-law or proposed amendment to subdivision by-law, for period of one hundred and fifty days from the publication of the first notice advertising the council’s intention to adopt or amend the subdivision by-law. [14] This brings into focus an apparent conflict between s. 283, supra and the above subsections of s. 278. find when considering the context of the Act generally, s. 278 must be subject to the clear meaning of s. 283. I find that s. 283 represents the legislator’s effort to protect developers exactly like the Applicant who received tentative approval under one regime and are to be protected from any subsequent changes. [15] The development officer therefore erred in law in finding the application incomplete. This decision is therefore set aside. On the same basis, the Applicant is entitled to a declaration that the application for final subdivision is complete, (again subject to non-contentious error in the plan). THE MANDAMUS APPLICATION [16] The requirements for mandamus are exacting. Justice Rogers in Rawdon Realties Limited et al v. Rent Review Commission (1982), 56 N.S.R. (2d) 403 (S.C.T.D.), considered the prerequisites. At page 405 he stated: In order for mandamus to lie, or an order in the nature of mandamus to lie, there must be, first of all, standing, sufficient legal interest in the parties making the application. There must also be no other legal remedy, equally convenient, beneficial and appropriate. Thirdly, there must be duty to the Applicant by the parties sought to be coerced to do the act requested. Fourthly, the duty owed must not be one of discretionary nature, but may be established at common law, or by statute. Fifthly, the act requested to be done must be required at the time of the application, not at some future date. Sixthly, there must be request to do the act and that request must have been refused. See also Smith’s Field Manor Development Limited v. Halifax (City) (1988), 83 N.S.R. (2d) 29 (S.C.A.D.) at p.40, Walsh v. Bedford (Town) (1990), 1990 CanLII 4173 (NS SC), 95 N.S.R. (2d) 377 (S.C.T.D.) and King v. Workers’ Compensation Board (N.S.) (1997), 1997 CanLII 1784 (NS SC), 163 N.S.R. (2d) 381 (S.C.). [17] In applying this test to the facts of the case at bar there is essentially only one issue. That is whether or not there is another legal remedy “equally convenient, beneficial and appropriate”. [18] Specifically, under the Municipal Government Act an aggrieved person such as the Applicant, can appeal refusal to grant subdivision permit. Subsection 247(3) provides as follows: (3) The refusal by development officer to (b) approve tentative or final plan of subdivision, may be appealed by the Applicant to the Board. [19] It is significant that the right of appeal is from a refusal. Technically in the case at bar, the application was not refused it was simply declared incomplete. This is significant in light of s. 277 of the Act which gives the development officer his jurisdiction. Section 277 provides: (1) Within fourteen days of receiving an application for subdivision approval, the development officer shall (a) determine if the application is complete; and (b) where the application is incomplete, notify the Applicant in writing, advising what is required to complete the application. (2) completed application for subdivision approval that is neither approved nor refused within ninety days after it is received is deemed to be refused, unless the Applicant and the development officer agree to an extension. (3) The development officer shall inform the Applicant of the reasons for refusal in writing. [20] Specifically subsection (3) contemplates refusal by the development officer and that refusal being in writing. [21] As stated in the case at bar, the decision of the officer was not refusal. The development officer’s response of March 15, 1998 is set out in Tab of the Applicant’s affidavit. It refers to s. 277(1)(b), noting specifically that the application was incomplete. It was therefore technically not refusal. [22] Furthermore under the Municipal Government Act, the Applicant’s right to appeal is limited. Section 250(3) provides: (3) An Applicant may only appeal refusal to approve concept plan or tentative or final plan of subdivision on the grounds that the decision of the development officer does not comply with the subdivision by-law. [23] In the case at bar, the grounds of appeal would have to be broader and arguably not covered under s. 250(3). [24] Furthermore, subsection 251(2) limits the Board’s jurisdiction on appeal. It provides: (2) The Board shall not allow an appeal unless it determines that the decision of council or the development officer, as the case may be, does not reasonably carry out the intent of the municipal planning strategy or conflicts with the provisions of the land-use by-law or the subdivision by-law. [25] Thus even if the Board were to hear this matter by way of appeal, it might not have been able to grant appropriate relief. [26] Furthermore, the mere existence of another potential remedy is not enough to deny mandamus. take guidance from the decision of Smith’s Field Manor Development Limited v. Halifax (City) 83 N.S.R. (2nd) [N.S.C.A.] where at paragraph 57 Chipman, J.A. (after referring to the Rawdon Realties Limited, supra) noted at paragraph 57: It will be noted that it is not the total absence of another legal remedy which is requisite for mandamus, but the absence of another legal remedy which is equally convenient, beneficial and appropriate. It has been said that the court on review will weigh the character and competence of the alternative remedy to ascertain if it is sufficient and convenient in the true legal sense of these words. See R. v. Minister of Finance, 1934 CanLII 29 (SCC), [1935], S.C.R. 70, at 86. [27] Therefore, given the aforesaid restrictions in the Applicant’s right to appeal and after considering all the circumstances of this case, find that no “equally convenient, beneficial and appropriate remedy” exists. Therefore, an order for mandamus is appropriate and I so order. Specifically, I direct the development officer to issue the final approval (subject only to the Applicant correcting the technical error in the plan). Michael MacDonald Associate Chief Justice

The applicant, having received a tentative subdivision approval, applied for final approval. In the meantime, the Municipality's road construction specifications had become more stringent and his proposal did not comply with the new specifications. The development officer found the application to be incomplete and the applicant applied for certiorari and mandamus. Certiorari granted; declaration issued that application for final subdivision approval was complete; order for mandamus granted and the development officer directed to issue final approval (subject only to the applicant correcting the technical error in the plan). The development officer's decision was based on interpretation of relevant legislation and the proper standard of review is correctness. The development officer misinterpreted the legislation. Since the applicant had already received tentative approval under the old regime, it did not have to meet the new higher standards for final approval. There was not another legal remedy open to the applicant equally convenient, beneficial and appropriate. The right of appeal under the legislation existed only from a refusal by a development officer and technically, this was not a refusal as the application was found incomplete. Both the right of appeal under the Act and the Board's power to grant an appeal were limited, either of which could result in the applicant having no remedy

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QBC 40 of A.D. 1997 IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF REGINA PROVINCE OF SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN and CHAD J. D. DELAITTRE Bryce Pashovitz for Her Majesty The Queen Aaron Fox, Q.C. for Chad J. D. Delaittre JUDGMENT ALLBRIGHT J. MARCH 10, 1998 The accused, Chad J. D. Delaittre, has pleadguilty to a charge: THAT HE, the said Chad J. D. Delaittre,on or about the 21st day of July, A.D. 1996 at or nearRegina, in the Province of Saskatchewan did operate amotor vehicle on the streets of the City of Regina towit: 200 North Albert Street, in a manner dangerous tothe public, and did hereby cause the death of VernonKeith Ward contrary to Section 249(4) of the CriminalCode of Canada. In addressing the matter of an appropriate sentence, the Crown suggests that range of sentences for such an offence runs from low of fifteen months to high of four and one-half years. In this instance, the Crown argues that incarceration should result, somewhere within that range and that under the circumstances of this offence conditional sentence would not be appropriate. The defence suggests range of sentences which is broad, and lower than that suggested by the Crown. Specifically the defence argues that a sentence in the lowerend of the range is one which should be imposed and that sucha sentence should be a conditional sentence to be served inthe community, rather than in a corrections facility. CIRCUMSTANCES OF THE OFFENCE This accident occurred at approximately 10:30 p.m. on Sunday, July 21, 1996 at the intersection of Albert Street and 3rd Avenue North in the City of Regina. At that intersection, there are two through driving lanes proceeding in northerly direction, with left turn lane and right curb lane. The intersection is not controlled by traffic lights. The accused was driving black 1986 Volkswagen model G.T.I. and had been travelling along Albert Street from the south side of Regina in northerly direction. He was accompanied by friend, Trevor Leibel. Alcohol does not appear to have been in any way involved in the accident, and breathalyzer reading taken approximately one and one-half hours after the accident revealed no alcohol in the blood of the accused. Conflicting accounts of the driving leading up to the accident and the accident itself have been provided by various witnesses. The following is summary of the observations of those witnesses. Alan Cassidy Alan Cassidy prior to the accident was travelling north bound on Albert Street having just passed 1st Avenue North. Two vehicles passed him at high rate of speed, one being light colored Audi which passed his vehicle on the left, the other being black Volkswagen, that being driven by the accused which passed on his right. He noticed number of vehicles stopped in front of him at the intersection of Albert Street and 3rd Avenue North and at about that same time, he observed pedestrian crossing at the intersection from the west side of Albert Street towards the east side of Albert Street. He noted, after the Volkswagen had passed him, the brake lights on the vehicle activate and he saw the vehicle strike the deceased, Vernon Keith Ward in the intersection. Trevor Ellis Trevor Ellis was driving south on Albert Street intending to turn on to 3rd Avenue North and proceed in an easterly direction. He stopped to await oncoming traffic and noted vehicle go by quickly to his left in what would be the left hand lane for traffic proceeding north. Vehicles were stopped in the driving lanes and he then observed the Volkswagen approach those vehicles from behind, and turn into the right hand curb lane. He heard squealing of tires and the sound of "bang" and saw something go flying. Following the accident he observed that Mr. Delaittre was upset and went over to the victim, Mr. Ward, indicating "I'm sorry, I'm sorry". He was uncertain as to what happened to the light colored Audi. Paul Benson Paul Benson was passenger in the Audi being driven by Dallas Black. He and Mr. Black, shortly after 10:00 p.m., had started driving up Albert Street from the south area of Regina. Early on, he noted the black Volkswagen driven by Mr. Delaittre also travelling north on Albert Street. He observed that the Volkswagen was travelling in and out of traffic and noted that for some period of time he was driving along with an Accura automobile. He estimated the Volkswagen to be travelling 70 to 80 kilometers per hour. He described the Volkswagen as pulling around vehicles whenever possible and "jousting with the Accura". At the intersection of Albert Street and 5th Avenue, the Audi driven by Mr. Black, and Mr. Delaittre's vehicle stopped at the traffic light. Mr. Black was in the right lane and Mr. Delaittre was in the left lane. When the light turned green both vehicles accelerated and the Audi moved into the left lane while the Volkswagen shifted into the right driving lane. They stopped for another light at Albert Street and 1st Avenue again with the Audi occupying the left driving lane and the Volkswagen in the right driving lane. Mr. Benson indicated the accused gestured as if he wanted to race and both vehicles accelerated hard when the light turned green. The Audi left the intersection first followed by the Volkswagen and Mr. Benson estimated that both vehicles reached speeds of 70 kilometers per hour. The Volkswagen, however ended up approximately one-half block behind the Audi. As the vehicles approached the intersection where the accident occurred, Mr. Benson saw two vehicles in his lane, the left driving lane and three vehicles in the right driving lane, that being the lane in which the Volkswagen was driving. These vehicles were either stopped or slowing to stop at the intersection. He then observed pedestrian crossing the intersection and immediately observed the Volkswagen on his right, drive into the curb lane, and lock its brakes. That was the end of the observations of Mr. Benson. Mr. Benson indicates that he and Mr. Black stopped, however that does not appear to be consistent with the evidence of Mr. Ellis, and indeed it would appear that the Audi left the scene of the accident immediately. Dallas Black Dallas Black confirmed Mr. Benson's description of the events leading up to the accident, although he recalls first seeing the black Volkswagen in the area of Albert Street and College. At the intersection of Albert Street and 1st Avenue, approximately three blocks from the accident, both vehicles were stopped, Mr. Black in the left driving lane and the black Volkswagen driven by Mr. Delaittre in the right driving lane. Mr. Black accelerated to approximately 70 kilometers per hour, then looked up, and continued to accelerate. He noticed vehicles at the intersection at Albert Street and 3rd Avenue and observed the Volkswagen turn into the right hand curb lane, lock its brakes and slide into the intersection. Mr. Black did not remain at the scene of the accident and only later was his identity made known to the authorities. Trevor Leibel Trevor Leibel was passenger in Mr. Delaittre's vehicle and indicates that Mr. Delaittre sped up to keep up with the Audi and that at the time of the accident, the accused had run out of room and had to go to the right lane to avoid hitting the cars which were in front of them in the driving lanes. The accused saw the pedestrian at that time and hit the brakes, however the vehicle could not stop and Mr. Ward was struck. Vernon Keith Ward, was 64 years of age at the time of the accident and lived in the vicinity. He was dressed in dark clothing that night and crossed in the southerly unmarked pedestrian crosswalk proceeding from the west to the east. Mr. Ward had almost completely crossed the intersection walking in front of the vehicles which had stopped to allow his passage. Upon impact he was thrown onto the hood of the vehicle, then the roof, and came to rest just in front of the vehicle in the intersection. passer-by called 911. The accused, as well had asked someone to call 911. Mr. Ward passed away short time thereafter as result of the injuries sustained in the accident. An investigator who attended at the scene estimated the speed of the Volkswagen at approximately 85 kilometers per hour prior to brake lock-up and further estimated the speed to be 56 kilometers per hour at impact. An expert, secured by the defence, indicated from his reconstruction that the accused could have been going approximately 65 kilometers per hour just prior to the brake lock-up. The Crown does not dispute this estimate. CIRCUMSTANCES OF THE ACCUSED The accused, Mr. Delaittre, was 19 years of age at the time of the accident and has now turned 21. He has minor youth record, that being charge of mischief proceeded with in Youth Court in September of 1993. In addition, Mr. Delaittre has six speeding convictions on his highway traffic record, two of them having been entered after the accident, in July and November of 1997. The accused lives with his parents in Pilot Butte and has worked steadily since the accident. He hopes in the future to attend University and pursue career in engineering. His work as of recent times has been involved in the oilfield. letter of support was offered by Mr. Delaittre's employer indicating Mr. Delaittre to be an "honest, reliable and hard-working individual with desire to better himself at all times." The letter is supportive of Mr. Delaittre and indicates that the accused has work with the company. further letter was provided by friend of Mr. Delaittre, retired Sgt. Ron Coleman of the Regina City Police. He has known Mr. Delaittre for fifteen years and has observed him as teenager and young adult. He speaks highly of Mr. Delaittre and has observed him to be polite and respectful towards others. He has undertaken job responsibilities that Mr. Coleman does not believe other young people would or could be in position to handle. Mr. Delaittre's parents were present in Court and have continued their support of him. While the accused had not prior to the entry of the guilty plea, directly expressed remorse to the family members of Mr. Ward, in Court he did express such remorse and from all accounts at the accident scene, expressed immediate remorse for his actions. THE LAW In determining what is fit and appropriate sentence in this matter, am required to consider and give effect to the principles set forth in the following statutory provisions contained in the Criminal Code of Canada: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal 742.1 Where person is convicted of an offence, except an offence that is punishable by minimum term of imprisonment, and the court: (a) imposes sentence of imprisonment of less than two years, and (b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of conditional sentence order made under section 742.3. Gerein J. in R. v. Melnyk (unreported July 4, 1997), commencing at p. analyzes the procedure which sentencing judge is to adopt in giving effect to these statutory sentencing provisions. He observes: From my reading of the legislation and the judicial commentary, conclude that court should proceed in this way. Initially there must be determination as to what is fit sentence taking into consideration what is set forth in the legislation, including ss. 718.2(d) and (e) which mandate somewhat new emphasis in the process. At the same time reference must be had to the jurisprudence contained in earlier cases, particularly with view to ensuring degree of parity as amongst like situations. If it happens that the appropriate sentence is one of more than two years imprisonment, then that sentence is imposed and that is the end of the matter. However, if the appropriate sentence is one of imprisonment for less than two years and such is not minimum sentence, then the court must go on to decide whether the sentence should be served in the community. In deciding this question, the court must first make determination about whether the accused presents danger to the community. If not, the court must then decide whether serving the sentence in the community will be consistent with ss. 718 to 718.2. To this extent consideration must be given to what is set forth in these sections and on that basis decision made as to whether the sentence will be served in the community. find support for the described process in R. v. Pierce (1997), 32 O.R. (3d) 321 (Ont. C.A.); R. v. Wismayer (unreported February 28, 1997, Ont. C.A.); R. v. Pederson (unreported May 9, 1997, Sask. C.A.); R. v. D.W.C. (unreported May 13, 1997, Sask. C.A.); R. v. Faubert (unreported May 14, 1997, Sask. C.A.); and R. v. Horvath (unreported June 16, 1997, Sask. C.A.). In this jurisdiction our Courts have canvassed appropriate sentences for the spectrum of driving offenses resulting in death or bodily harm. This spectrum includes the offences of criminal negligence in the operation of motor vehicle causing death or bodily harm, impaired driving causing death or bodily harm and dangerous driving causing death or bodily harm. In this instance, the offence is that of dangerous driving causing death. The Saskatchewan Court of Appeal to this time has not considered the question of whether it is appropriate that sentence of imprisonment be served in the community where the offence before the court is that of dangerous driving causing death. Prior to the implementation of the conditional sentence provisions contained in s. 742.1, the Saskatchewan Court of Appeal has imposed sentences of incarceration of different lengths in relation to various driving offences resulting in death. summary of some of these cases is as follows: In R. v. Hagen (unreported January 9, 1987) where the accused, with no prior record, was driving approximately 50 miles per hour on city street and while attempting to get around line of traffic, stopped for traffic light and struck and killed boy on bicycle. He then fled the scene of the crime. sentence of two years less day was upheld by the Court of Appeal. In R. v. Reynolds (unreported September 9, 1988) the sentence was 15 months where the accused had been drinking alcohol and fell asleep at the wheel. The vehicle rolled over causing the death of his passenger. In R. v. Awasis (1990), 1989 CanLII 4761 (SK CA), 78 Sask. R. 156 the accused pleaded guilty to two counts of dangerous driving causing death. The accused had been involved in night of drinking and partying without sleep. He had only one eye and drove in an erratic manner on the wrong side of the road killing two people. He had series of prior convictions including three impaired driving offenses. The Court of Appeal sentenced him to term of three years. In R. v. Osiowy (unreported October 8, 1993) the accused attempted to pass vehicles on the right hand shoulder of main highway at peak traffic conditions at high speeds. He struck and killed the victim who was riding his bicycle on the right shoulder. The accused left the scene, abandoned his vehicle and attempted to avoid detection by removing his license plates. He was driving while his license was suspended and had been consuming alcohol. He had substantial criminal record. He was sentenced to four and one-half years. R. v. Arcand unreported September 14, 1995) is case where the accused had consumed alcohol and entered ditch on the opposite side of the highway where he continued to drive until he ran into deep gully. One passenger was killed and all of the others injured. The accused was aware he was driving vehicle which was mechanically unsound and took the risk. He was sentenced to two years less day. It is significant to note that in almost all of these instances, the accused was consuming alcohol and that consumption of alcohol appeared to be either the major cause of the fatality or contributing factor. thorough canvass of these decisions and other sentencing precedents involving fatalities resulting from driving offenses is set forth in R. v. McKay unreported June 27, 1997). In v. McKay, Scheibel J., detailed series of relevant decisions in canvassing the question of what an appropriate sentence would be for Mr. McKay following his conviction for dangerous driving causing death. Mr. McKay was 20 years old at the time of the accident, and had committed five vehicle offences prior to the accident, however, he did not have prior criminal record. Scheibel J. described his driving; "although criminal, was not extremely erratic or bizarre. He was not driving at an excessively high speed, had not consumed any alcohol or drugs and he did not intend any harm. He stopped at the scene and attempted to render assistance. He is remorseful for what occurred." Following detailed analysis of the existing jurisprudence, and the sentencing principles set forth in ss. 718, 718.1, 718.2 and 742.1, Scheibel J. concluded that an appropriate sentence was term of imprisonment for eighteen months, to be served in the community pursuant to s. 742.1. The first six months of the sentence were subject to intensive conditions, to be served on the electronic monitoring program, and additionally the accused was required to perform 240 hours of community service work and prohibited from operating motor vehicle for three years. In R. v. Melnyk (supra) Gerein J. following detailed review of sentencing principles, sentenced the accused to term of 15 months to be served in the community, the first six months thereof to be served on the electronic monitoring program with intensive conditions. In addition the accused was placed on probation for term of 18 months, required to perform 200 hours of community service and prohibited from operating motor vehicle for three years. The accused was 21 years of age at the time of the offence and had consumed moderate amount of alcohol. He and two passengers were involved in single vehicle accident when he failed to navigate portion of the changing roadway, struck sign and entered the ditch where the vehicle flipped over. One of the passengers died. There was some evidence of speed over the posted speed limit, however not to excess. The Crown did not appeal from either of the sentences in R. v. McKay or R. v. Melnyk. The Saskatchewan Court of Appeal has consistently endorsed sentences of incarceration for the offence of impaired driving causing death. Towards that end, they haverejected alternatives to incarceration as not adequatelyreflecting the gravity of the offence and as not serving todeter either the offender or the general public fromcommitting like offences. One such case is R. v. Schneider (1994), 1994 CanLII 4670 (SK CA), 123 Sask. R. 162 (C.A.), decision prior to the conditional sentence amendment to the Criminal Code. In that case, the Court of Appeal upheld the 15 month sentence of imprisonment imposed upon an accused convicted of impaired driving causing death. The accused argued on appeal that she should have had the benefit of electronic monitoring as part of the sentence, as opposed to incarceration due to her lack of past criminal record and the low likelihood of re-offending. The Court, however held that where death had occurred, electronic monitoring would not maintain public confidence in the administration of justice. Recently, in R. v. Keller, the Court of Appeal dismissed an appeal by the accused from refusal by the learned trial judge to sentence the accused pursuant to s. 742.1 of the Criminal Code allowing her to serve the sentence in the community. The learned trial judge had sentenced the accused to term of imprisonment of two years less day. The accused had consumed significant quantity of alcohol and was in no shape to drive vehicle. With passengers in her vehicle, she accelerated constantly swerving in and out of traffic, and ran traffic light as she sped down Broad Street. She was travelling at 100 to 120 kilometers per hour, lost control of her vehicle, mounted concrete barrier, and skidded along the barrier. The deceased was thrown from the vehicle during this process. She had blood alcohol level of .180. At p. of the unreported decision, the court observes: In sentencing for crimes of the nature of those committed in this case, the public interest weighs heavily in the balance, point this and other courts have often been at pains to make, stressing the need to denounce strongly conduct of this character, to try diligently to deter it, and to strive continually to overcome the attitudes that spawn it. And so this court has said many times, having regard for these objectives in particular, that crimes of this nature will be met with firm sentencing hand in the interests of the safety of the public. In addition to R. v. Schneider, see, for example, R. v. Powell (1990), 1989 CanLII 5069 (SK CA), 81 Sask. R. 301; R. v. Pearman (1991), 1990 CanLII 7638 (SK CA), 89 Sask. R. 156; R. v. Paul (1991), Sask. R. 199; and R. v. Kahpeepatow (1992), 1991 CanLII 7956 (SK CA), 97 Sask. R. 90. The sentence appeal was dismissed. ANALYSIS As result of the actions of the accused, Vernon Keith Ward is deceased. The offence must be considered consequently as being serious. Indeed, the sentence imposed must reflect the seriousness and the gravity of the offence. Family members of the deceased have provided victim impact statements which express their personal sorrow. They keenly feel the loss of loved one and are troubled by the senseless death of Mr. Ward. The events of July 21, 1996 have been tragic for everyone concerned. In considering sentence, must be mindful of all of the circumstances. It is germane to consider the driving of the accused and do not believe it can be fairly said that he drove in bizarre fashion over protracted period of time. His actions were clearly inappropriate and imprudent and his failure to drive in normal fashion resulted in tragic consequences. For whatever reason, he failed to monitor and perceive the situation in front of him and drove at speed in excess of that permitted by law. He along with the occupants of the Audi had chosen to accelerate from stop lights and change lanes somewhat randomly. Neither vehicle was driven prudently. However, alcohol was not factor in this accident. That in my view is significant feature in this factual backdrop. Had the accused been paying attention to his surroundings the accident would not have occurred. It ishis lack of attention together with excessive speed thatresulted in the accident. Immediately following the accident, the accusedstopped to render what assistance he could to Mr. Ward andthis should be contrasted with the driver of the Audi who leftthe scene of the accident immediately. I am concerned in this matter with the principles ofgeneral deterrence, denunciation, protection of the public,and maintenance of public confidence in the administration ofjustice. I must also be concerned with the principles ofspecific deterrence and rehabilitation of the accused. A troubling factor in this instance arises from thesubsequent convictions of the accused for two speedingoffences. It is difficult to understand how the trauma of the accident could not have altered the accused's driving habits to prevent speeding infractions. These convictions must beviewed as an aggravating circumstance requiring some emphasison specific deterrence. am of the view that the range of sentencing sought by the Crown is higher than called for under these particular circumstances. am of the further view that conditional sentence would not be appropriate in this matter. It is important that members of the public be constantly aware that motor vehicles have the potential to be inherently dangerous if not operated with care and where misuse of motor vehicle occurs the sentences must serve as meaningful reminder that consequences will result. Upon considering all of the objectives and principles of sentencing, along with the particular circumstances of this offence, including its gravity, and the degree of responsibility of the accused, find that there must be some period of imprisonment. am of the view that an appropriate sentence is one which may be served intermittently. believe that this will effectively address the principles of general deterrence, specific deterrence, denunciation, and rehabilitation. Therefore, in respect to the offence of dangerousdriving causing death, I sentence the accused to be imprisonedfor 90 days in the Provincial Correctional Centre at Regina,Saskatchewan, said sentence to be served intermittently. While doing so, the accused shall comply with the followingconditions of probation: (1) He shall present himself to the keeper of the said Correctional Centre not later than 7:30 p.m. on Friday, March 20, 1998, and each succeeding Friday until the sentence is served and remain for release on the Monday next following each Friday at time not later than 7:00 a.m. (2) He shall keep the peace and be of good behavior. (3) He shall appear before the court whenever required to do so. (4) He shall refrain absolutely from the consumption ofalcohol and non-prescription drugs for 24 hoursprior to his attendance on each Friday at theCorrectional Centre. In addition, I direct that the accused enter into aprobation order which shall commence after he has served hissentence of imprisonment for 90 days and which shall be for aterm of 18 months. The conditions of the order shall be thefollowing:(1) keep the peace and be of good behavior;(2) report to this court if and when required to do so;(3) report to the Chief Probation Officer for theProvince of Saskatchewan, or his designate, withineight weeks of this date and thereafter as requiredby him or his designate;(4) that you perform 200 hours of community servicework at the direction and to the satisfaction of theChief Probation Office for the Province ofSaskatchewanor his designate;(5) that you shall register in a program of eduction ofdefensive driving under the direction of and to thesatisfaction of the Chief Probation Officer or hisdesignate. In addition you are ordered to pay a surcharge of$250.00 and in default you will be incarcerated for a periodof ten days. The time for payment is extended until May 31, 1998. Pursuant to s. 259(2)(b) of the Criminal Code ofCanada, you are prohibited from operating a motor vehicle onany street, road, highway or other public place for a periodof three years from this date. G.N. Allbright, Q.B.J.

The accused who had plead guilty to a charge of dangerous driving causing death sought a conditional sentence to be served in the community. Various witnesses gave conflicting accounts of the driving leading up to the accident and the accident itself. Two vehicles driving at a high rate of speed, one in the left lane and one in the right hand curb lane passed vehicles stopped at a cross walk, the later striking and killing a pedestrian. The vehicles had been observed pulling around other vehicles whenever possible and 'jousting' with each other. HELD: A sentence of 90 days to be served intermittently in a provincial correctional centre was imposed. Conditions of probation included restraint from the consumption of alcohol and non-prescription drugs for 24 hours prior to attendance at the centre. An 18 month probation order required him to perform 200 hours of community service and to enroll in a defensive driving course. He was prohibited from operating a motor vehicle for three years and was to pay a surcharge of $250. 1)The Saskatchewan Court of Appeal had not to date considered the question of whether it was appropriate that a sentence of imprisonment be served in the community where the offence is that of dangerous driving causing death. It has consistently endorsed sentences of incarceration for the offence of impaired driving causing death. Alternatives to incarceration were rejected as not adequately reflecting the gravity of the offence and as not serving to deter either the offender or the general public from committing like offences. 2)The driver's lack of attention together with excessive speed caused the accident. Alcohol was not involved. He stopped to render assistance whereas the driver of the second car which had been racing with him left the scene of the accident immediately. Principles of general and specific deterrence, rehabilitation, denunciation, protection of the public and maintenance of public confidence in the administration of justice were to be considered. 3)Specific deterence had to be emphasized in view of the driver's subsequent convictions for two speeding offences. The accused had six speeding convictions. He had a minor youth record involving mischief.

9_1998canlii13836.txt

J. 2003 SKQB 223 Q.B.G. A.D. 2003 No. 516 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: GRANT ROBERTS and McCALLUM PROPERTY MANAGEMENT LTD. and OFFICE OF THE RENTALSMAN RESPONDENT Grant Roberts appearing for himself A.M. Tetu for the respondent, McCallum Property Management JUDGMENT GEREIN C.J.Q.B. May 12, 2003 [1] This is an appeal by a tenant against a decision awarding his former landlord $1,245.00. The appeal questions the correctness of the award and the validity of the notice of the hearing. need deal only with the latter. [2] When the tenant vacated his rented premises there was dispute about what constituted proper notice. In consequence, the landlord applied to the Office of the Rentalsman for determination of the issue. notice of hearing, returnable January 9, 2003, was purportedly sent to the tenant by registered mail and delivered on November 28, 2002. This conclusion is based on Canada Post document which states an item was delivered to the customer on November 28, 2002. The item is not described and the customer is not named. The document does state the item was signed for by one J. Moller Warmedal who is not the tenant. [3] In fact, the tenant never did receive the notice. Rather, his father became aware of it on December 31, 2002, and contacted his son who was then absent from the country. The father appeared at the hearing and objected to the service of the notice of hearing. The Deputy Rentalsman refused to give effect to the objection; proceeded with the hearing; and made the award of $1,245.00. [4] In her written decision the Deputy Rentalsman made these comments about service of the notice of hearing. hearing was held on January 9, 2003 at Saskatoon, Saskatchewan. The Hearing Notice was served by registered mail to the Tenant’s workplace. Someone other than the Tenant signed for the registered mail. The Tenant’s father attended the hearing indicating that the Tenant was out of the country. The Tenant was not seeking an adjournment and the Tenant’s father, Robert Buirds, indicated that he was acting as the Tenant’s agent only in so far as to argue that the Tenant had not been properly served. Mr. Buirds indicated he has communicated with the Tenant several times regarding the Landlord’s claim. Mr. Buird further indicated that the Tenant was aware of the Landlord’s claim. The Hearing Notice sets out that the Landlord’s application is to be served personally or by registered mail. The purpose of requiring this type of service is two fold; firstly to ensure that the Tenant is aware of the date, time and place of the hearing and secondly to ensure that the Tenant is aware of the particulars of the Landlord’s claim. find in the circumstances of this case that these purposes for services (sic) have been met. The Tenant obviously was aware of the date, time and place of the hearing as well as the particulars of the Landlord’s claim. ruled that the hearing would proceed. In proceeding as she did, the Deputy Rentalsman acted pursuant to s. 60 of The Residential Tenancies Act, S.S., c. R-22, the relevant portions of which are the following. 60(1) Except as otherwise provided in this Act or directed by the Rentalsman: (a) any notice or other document required or permitted to be served or delivered by landlord to tenant shall be served personally on the tenant or served by leaving copy with an adult person apparently residing in the premises of the tenant or shall be served on the tenant by ordinary mail; (b) any other notice or document required or permitted to be served or delivered pursuant to this Act is sufficiently served or delivered if served or delivered personally or sent by ordinary mail. (2) Service of notice or other document pursuant to this Act or the regulations may be proved by affidavit of the person effecting such service and there shall be exhibited to the affidavit copy or duplicate of the notice or other document. (5) Where notice or other document is served by sending it by ordinary mail, it shall be deemed to have been served on the third day after the date of the mailing of the notice or document. (5.1) Notwithstanding that service of notice or other document does not comply with this Act, the Rentalsman may order that the service is sufficient if, in the opinion of the Rentalsman, the notice or other document came to the attention of the person to be served. (5.2) Notwithstanding that person is deemed to have been served pursuant to subsection (5), that person may bring evidence to prove that he or she was not served or was served on later date. [5] Section 60 is concerned with the method of service. It sets out how service is to be effected and s. 60 (5.1) empowers the Rentalsman to validate defective service provided the notice came to the attention of the person to be served. Despite the landlord’s failure to strictly comply with s. 60(1)(a), the tenant did receive notice of the particulars of the claim and the place and time of the hearing. Accordingly, no reversible error occurred when the Deputy Rentalsman held that the purposes for service had been met. [6] However, that is not the end of the matter. The Office of the Rentalsman has decreed that there must be at least ten days notice of claim for an order such as that obtained in this instance. This is set forth on the back of the hearing notice in these words. landlord claim for any other type of order must be served either (a) personally on the tenant(s) at least 10 days before the hearing or by Registered Mail and obtaining Delivery Confirmation that clearly shows that the tenant(s) has signed for and accepted the notice at least 10 days before the hearing. [7] Section 60(5.1) of the Act does not speak to abridging the time for service and no such authority is to be found elsewhere. In fact, the Deputy Rentalsman never addressed the subject. [8] In this instance, the tenant received notice of the hearing on December 31, 2002. That day and the day of the hearing must be excluded in calculating the notice period. See s. 24(4) of The Interpretation Act, S.S., c. I-11.2. It follows that in this case the tenant received only eight days notice. He was entitled to insist on ten days notice and by denying him that period of notice the Deputy Rentalsman committed an error in law. [9] In the result, the appeal is allowed; the award is set aside; and it is ordered that there be a new hearing on a date to be fixed by the Rentalsman. There will be no costs.

An appeal of an award of $1,245. The tenant's father contacted him about the hearing while he was out of the country. The father appeared at the hearing and objected to service of the hearing notice. HELD: The appeal was allowed. The award was set aside and a new hearing was ordered. The Deputy Rentalsman committed an error in law by denying 10 days notice. The Landlord and Tenant Act s.60(5.1) empowers the Rentalsman to validate a defective service provided the notice came to the attention of the person to be served. The day the notice was received and the day of the hearing must be excluded in calculating the notice period (Interpretation Act s.24(4)). In this case the tenant received only 8 days notice. No costs.

8_2003skqb223.txt

nan S.H.C.R. 150705 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: HER MAJESTY THE QUEEN and LLOYD EUGENE BAILEY nan HEARD: At Halifax, Nova Scotia, on June 2, 2000 BEFORE: The Honourable Justice Donald M. Hall DECISION: July 21, 2000. COUNSEL: John Scott, Esq., Counsel for the Crown. Brad Sarson, Esq., Counsel for the Defence. Reverend Wrenford Bryant Surety Hall, J. [1] The Crown has applied pursuant to s. 771 for an order forfeiting the amount of bail set out in a recognizance entered into by the accused, Lloyd Eugene Bailey, and the surety, Reverend Wrenford Bryant, in the amount of $1,000.00, which was given to secure the release of the accused pending his trial on a number of criminal charges. [2] The question for the court to decide here is whether, in the circumstances of this case, forfeiture should be ordered against the accused or the surety or both. [3] The accused was charged with four offences with respect to a twelve year old girl which allegedly occurred during the month of December, 1997. The offences include sexual assault under s. 271(1)(a) of the Criminal Code, uttering a threat, s. 264.1(1)(a), sexual touching under s. 151 and unlawfully having a weapon contrary to s. 87. [4] It appears that the accused was arrested in December of 1997 and remanded in custody at the Halifax Correction Centre pending posting of bail which was set at $1,000.00 with a surety. The surety, Mr. Bryant, visited the accused at the Halifax Correction Centre and agreed to be surety. He then appeared before justice of the peace at the Correction Centre and signed the recognizance. In the supporting affidavit of justification, he stated his assets as "1984 LeSabre Buick". condition of the recognizance was that the accused appear in court when required to do so and that he continue to reside at his then residence on Brunswick Street in the City of Halifax. The accused was released. He appeared for his preliminary inquiry in September, 1998. Subsequently trial date was scheduled for June 8, 1999, and resolution conference was set for January 28, 1999. This was subsequently adjourned to March 11, 1999. In May, 1999, the trial was adjourned from June, 1999, at the request of the accused and was rescheduled for March 6, 2000. It appeared that at that time the accused had been injured and was not present at the May proceeding because both of his legs had been broken. [5] Following his release from prison the accused continued to reside at the Brunswick Street residence for period of time but then moved on number of occasions. He resided for period on Stokoe Avenue in Lower Sackville and then in Annapolis Royal at the home of his father for short period and subsequently at the residence of neighbour in Annapolis Royal. He eventually returned to the Halifax area and then moved to British Columbia in early February of this year.. [6] The accused is paraplegic having suffered serious injuries in an automobile accident in 1990. As result, he has not been gainfully employed since that time and has been dependent on social assistance for his subsistence. At first the accused was confined to wheel chair but now apparently he is able to walk to limited degree with the aid of "walker". Apparently, as result of his inability to find suitable living accommodation in this area and to obtain further treatment that was not available here, he asked the local Social Services officer to provide him with funds to enable him to relocate to British Columbia. The local office provided him with funds to purchase one way airfare to British Columbia and around the first of February, 2000, the accused moved to British Columbia. When his application was being considered by the Social Services officials the accused was asked if he had any outstanding court dates and so forth. He replied that there was "one court issue that was being dealt with and wouldn't prevent him from leaving the province". No further inquiry with respect to this issue was made and the money was provided. The accused then moved to British Columbia despite the fact that his trial on these charges was scheduled to begin in Halifax on March 6, 2000, and he had further court appearance scheduled in Provincial Court for March 21st, 2000, with respect to an unrelated criminal charge. [7] The accused did not appear for trial on March 6, 2000 and a Canada wide warrant for his arrest was issued. He was eventually located in British Columbia and was arrested. Two police officers from Halifax were dispatched to British Columbia to return the accused to Halifax and he was returned at total cost of approximately $12,000.00. [8] Under date of April 19, 2000, Tidman, J., of this Court signed an order in Form 33 of the Criminal Code declaring that the accused was in breach of his obligation to appear in court for trial on April 6, 2000. Notice of this application for forfeiture under s. 771 was given to the accused and the surety. [9] The position of the Crown with respect to the accused is that he deliberately left the province to avoid his trial and, therefore, should be responsible for the full $1,000.00. As to the surety, the Crown submitted that under s. 771(2) of the Criminal Code sureties have a responsibility to ensure the attendance at trial of the person for whom they go bail and are responsible for getting out of prison and, therefore, the surety should be responsible for the full $1,000.00. [10] The position of the surety, Mr. Bryant, is that he was "sucked into signing the bail". He maintains that he did not know what it was until after he had signed it. After learning that in fact he had gone bail for the accused he thought that it only carried through until the accused's first appearance in court and that since the accused did appear in court he was no longer responsible. He maintains further that it was not explained to him what his responsibilities under the recognizance were and thus he should not be responsible for any amount. [11] The position of the accused is that he did not leave Nova Scotia to avoid trial but because he could not find living accommodation here. He maintains that he failed to return from British Columbia because he did not have any money to purchase ticket to return to Nova Scotia. He says further that he had no intention of avoiding trial but did not return because of his impecuniosity and should, therefore, not be responsible for the bail. The applicable provisions of the Criminal Code are: 771. (1) Where recognizance has been endorsed with certificate pursuant to section 770 and has been received by the clerk of the court pursuant to that section, (a) judge of the court shall, on the request of the clerk of the court or the Attorney General or counsel acting on his behalf, fix time and place for the hearing of an application for the forfeiture of the recognizance; and (b) the clerk of the court shall, not less than ten days before the time fixed under paragraph (a) for the hearing, send by registered mail, or have served in the manner directed by the court or prescribed by the rules of court, to each principal and surety named in the recognizance, directed to the principal or surety at the address set out in the certificate, notice requiring the person to appear at the time and place fixed by the judge to show cause why the recognizance should not be forfeited. (2) where subsection (1) has been complied with, the judge may, after giving the parties an opportunity to be heard, in his discretion grant or refuse the application and make any order with respect to the forfeiture of the recognizance that he considers proper. (3) Where, pursuant to subsection (2), judge orders forfeiture of recognizance, the principal and his sureties become judgment debtors of the Crown, each in the amount that the judge orders him to pay. (4) Where deposit has been made by person against whom an order for forfeiture of recognizance has been made, no writ of fieri facias shall issue, but the amount of the deposit shall be transferred by the person who has custody of it to the person who is entitled by law to receive it. (1) Where writ of fieri facias is issued pursuant to section 771, the sheriff to whom it is delivered shall execute the writ and deal with the proceeds thereof in the same manner in which he is authorized to execute and deal with the proceeds of writs of fieri facias issued out of superior courts in the province in civil proceedings. (1) Where writ of fieri facias has been issued under this Part and it appears from certificate in return made by the sheriff that sufficient goods and chattels, lands and tenements cannot be found to satisfy the writ, or that the proceeds of the execution of the writ are not sufficient to satisfy it, judge of the court may, upon the application of the Attorney General or counsel acting on his behalf, fix time and place for the sureties to show cause why warrant of committal should not be issued in respect of them. (3) The judge shall, at the hearing held pursuant to subsection (1), inquire into the circumstances of the case and may in his discretion (a) order the discharge of the amount for which the surety is liable; or (b) make any order with respect to the surety and to his imprisonment that he considers proper in the circumstances and issue warrant of committal in Form 27. [12] There does not seem to be great deal of jurisprudence on this subject and counsel referred to none. It would appear from the wording of ss. 771(2) that the judge hearing forfeiture application has very wide discretion. have, however, examined the English case of R. v. Horseferry Road Magistrate, ex parte Pearson [1976] nan All E.R. 264 and the Canadian cases of R. v. Sandhu (1984) 38 C.R.(3d) 56 and R. v. Huang (1998) 127 C.C.C.(3d) 39. 13. In R. v. Horseferry Road Magistrates’ Court ex parte Pearson (supra) in setting aside the forfeiture order of the magistrate, Lord Widgery, C.J., said at page 266: What is said here, as was said in R. v. Southampton Justices, is that the magistrate failed to take into account certain important factors and thus exceeded his jurisdiction. Those important factors were two in number. The first was the means of the surety and the second was his or her culpability. nan In R. v. Southampton Justices Lord Denning MR said: By what principles are the justices to be guided? They ought, think to consider to what extent the surety was at fault. If he or she connived at the disappearance of the accused man, or aided it or abetted it, it would be proper to forfeit the whole of the sum. If he or she was wanting in due diligence to secure his appearance, it might be proper to forfeit the whole or substantial part of it, depending on the degree of fault. If he or she was guilty of no want of diligence and used every effort to secure the appearance of the accused man, it might be proper to remit it entirely. Then he goes on to say that in that case the surety had done all that wife could do and accordingly the order for forfeiting her recognisance was set aside. find it difficult, with all respect to Lord Denning MR, entirely to follow this passage that have read because the forfeiture of recognisance is in no sense penalty imposed on the surety for misconduct. do not doubt that the magistrate, before forfeiting the recognisance, must consider amongst other things the conduct of the surety and see whether it was open to criticism or not. But one must, think, start all these problems on the footing that the surety has seriously entered into serious obligation and ought to pay the amount which he or she has promised unless there are circumstances in the case, relating either to her means or to her culpability, which make it fair and just to pay smaller sum. Looked at from that point of view R. v. Southampton Justices is helpful authority in the present instance and would apply it accordingly. [14] Boilard, J., of the Quebec Superior Court in R. v. Sandhu (supra) adopted the statement of Lord Denning in referring with apparent approval to the decision of the Newfoundland Supreme Court in R. v. Andrews (1975) 34 CR.N.S. 344 where Furlong, C.J., said after quoting the above statement by Lord Denning: With great respect would wholly adopt this clear statement and have been guided by it. In this case have considered very fully the conduct of the sureties and have taken into account what their counsel has said about the apparent acquiescence by the police in continuing breaches of some of the conditions. The prime obligation which they undertook was to ensure the attendance of the accused before the Court when the charge against him was going to be tried. They know full well the safeguards that had been attached to the recognizance in order to minimize his disappearance. To say now that they were lulled into state of false security by the failure of the police to inform them of the breaches of the condition is not available to them as an excuse. There is no suggestion that they connived with the accused in any way in his ultimate disappearance, but they failed to exercise that vigilance over his comings and goings and particularly over his residence that one would have felt would have been exercised by them for the protection of their own money if not for any higher reasons. feel, then that they have exposed themselves to this danger imprudently and with reckless disregard for the consequences. The conclusion which have arrived at is not by way of any punishment but it is simply as the discharge of an obligation which they voluntarily undertook. [15] Mr. Justice Boilard went on to say that if there is reasonable doubt that the surety understood the nature of the obligation that he or she was assuming that would be reason for judge to exercise his or her discretion in favour of the surety and refuse forfeiture. In support of this proposition he quoted from R. v. Janz (1973) 1973 CanLII 1424 (BC SC), 12 C.C.C.(2d) 98; at page 140: In any event for the foregoing reasons have reasonable doubt that Mrs. Jermyn did clearly understand that the sum of $1,000 was to be forfeited to Her Majesty the Queen, which is the wording used in most recognizances and in Form 28 [re-en. R. v. S.C. 1970, c. (2nd Supp.), s. 23(8)] of the Criminal Code, and having such doubt exercise my discretion and refuse the Crown’s application. (16) He also cited with approval the following statement from Archbold, Pleading, Evidence and Practice in Criminal Cases, 41 edition, (1982), p. 154, para. Sureties. Before surety formally accepts the obligations imposed upon him it is the practice (i) to explain to him exactly what the obligations involve, (ii) to ensure that he understands the obligations he is to undertake, (iii) to ensure that he is still prepared to undertake the obligations and that he is worth the sum involved after all his debts are paid, and (iv) to warn him of the consequences, which include possible imprisonment, if the defendant fails to appear when required to. If the condition of recognizance entered into either by party or by his sureties be broken, the recognisances may be forfeited, and on forfeiture the obligees become debtors to the Crown for the sums in which they are respectively bound (see the Fines Act 1833 [(3 Will. 4), c. 99]). The court, however, has discretion whether to order the estreat of recognisance. In practice, the explanation, whether sworn or otherwise, that the surety had taken all reasonable steps to secure the attendance of the defendant is carefully scrutinised before the court’s discretion is exercised in favour of the surety (17) In R. v. Huang (supra), McMurtry, C.J.O., referred to the decision in R. v. Andrews (supra) saying at page 401: It is agreed by counsel for the Crown and the surety that the decision of R. v. Andrews sets out the proper principles in relation to the exercise of judicial discretion in matter such as this. (18) In the case of Mr. Bryant he testified that he did not have an opportunity to read the recognizance before signing it. He stated that after it had been filled out by the justice of the peace it was handed to him and he was told to sign it. The document was not explained to him and his obligations as surety were not explained to him, nor were the potential consequences in the event of default explained to him. As is the practice he was not given copy of the document. His was the only evidence before me in this respect and accept it as being accurate. [19] I conclude that Mr. Bryant had no concept of his obligations under the recognizance. He mistakenly believed that his responsibilities or liability ended with the accused's first appearance in Court following his release. Certainly he was not aware that he himself could be subject to imprisonment under s. 773 in the event of default and was not made aware of that fact. [20] It seems to me that as stated in Archbold (supra), for surety to be liable for forfeiture, he or she should have had an opportunity to read the document before signing it and the obligations being assumed and the potential consequences in the event of default should have been explained to him or her. [21] Here, am convinced that if Mr. Bryant had understood or been made aware of what was expected of him and the possible consequences, he would not have signed the recognizance. Mr. Bryant impressed me as very kind and compassionate but responsible person. am certain that if he had signed the document having full knowledge of surety’s obligations and liability he would have monitored the accused's conduct in much more diligent manner. In these circumstances I am satisfied that it would not be just nor appropriate to order forfeiture on the part of Mr. Bryant. [22] Turning next to the case of the accused, for very different reasons I have concluded as well that forfeiture ought not to be ordered against him. In the first place, it is obvious that it would be an exercise in futility. The accused is impecunious; he has no income and no assets other than an apparatus worth a few dollars that enables him to drive a motor vehicle. He is paraplegic suffering severe physical disability which greatly limits his potential for employment to earn income. At the present time he is incarcerated awaiting trial on the matters that are the subject of this recognizance. In addition, he is facing other unrelated serious criminal charges. In these circumstances, it is clear that he has absolutely no ability to pay any amount that might be ordered against him nor any reasonable prospect of being able to do so in the foreseeable future. [23] Since, as seems clear, the accused would not be able to pay any amount that may be ordered against him, an order for imprisonment under s. 773 could be triggered. Section 145 of the Code, however, provides its own penalty for failure to appear for trial. Thus, the accused would potentially be liable for a double punishment for his failure to appear for trial which is not acceptable in our system of criminal justice. [24] Although the accused's conduct in leaving the jurisdiction as he did may be considered to be blameworthy or, at best, reckless, if one accepts his version and deserving of some sanction, in the circumstances have concluded that forfeiture should not be ordered against him. As the authorities referred to above point out, the purpose of forfeiture is not to punish an obligor but to enforce payment of financial obligation. Those authorities also point out that the ability to pay surety is factor to be considered. It seems to me that this principle should also apply to the principal obligor, the accused. In my opinion, the accused already has enough on his plate and is experiencing enough negative factors without adding one more which would not be in his or the public’s interest. [25] Accordingly, the applications for forfeiture are dismissed. Donald M. Hall, J.

The accused was charged with four offences relating to a twelve year old girl, including sexual assault and uttering a threat. He was released on bail with a surety. The accused is paraplegic. He moved to British Columbia after his release. He did not appear for trial, and a Canada wide warrant was issued for his arrest. He was arrested and returned to stand trial. The Crown applied to have bail and the surety forfeited. It took the position that the accused had deliberately left the province to avoid trial, and therefore should be responsible for the full $1,000. It also contended that the sureties had a responsibility to ensure the accused's attendance at trial, and that they should also be responsible for the full $1,000. The surety testified that the conditions of the recognizance were not explained to him, and he did not understand the potential consequences of default. Dismissing the applications for forfeiture, that the surety had no concept of his obligations under the recognizance, and was not made aware of those obligations by the authorities. In these circumstances, it would not be just to order forfeiture. With respect to the accused, he is impecunious. His failure to pay any amount ordered against him could lead to imprisonment. As the accused already faces the prospect of imprisonment for failing to attend trial, this would create the potential of double liability for what is in essence the same offence.

e_2000canlii4625.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Fournier v. Green, 2005 NSSC 322 Date: 20050908 Docket: SH 225931 Registry: Halifax Between: Michelle Fournier v. Debra Green and Eric Craig Defendant Judge: The Honourable Justice Simon J. MacDonald Heard: June 10, 2005 in Port Hawkesbury, Nova Scotia Counsel: Gerald A. MacDonald, for the plaintiff Sandra Arab Clarke, for the defendant By the Court: [1] This is an application for an Order for summary judgement pursuant to Civil Procedure Rule 13 and an interim payment under Civil Procedure Rule 31.01. have read the affidavits on file as well as the briefs submitted by counsel. as well heard Counsel representing both sides in oral argument at the chambers hearing for this application. [2] Civil Procedural Rule 13.01 states as follows: 13.01. After the close of pleadings, any party may apply to the court for judgment on the ground that: (a) there is no arguable issue to be tried with respect to the claim or any part thereof; (b) there is no arguable issue to be tried with respect to the defence or any part thereof; or (c) the only arguable issue to be tried is as to the amount of any damages claimed. [3] The Plaintiff ,in order to succeed in summary judgement application, first has the obligation to prove her claim and then the burden shifts to the Defendant to satisfy the court that he has bonafide defence or at least an arguable issue to be tried before the court. He must disclose the nature of the defence or the issue to be tried with clarity through sufficient facts to indicate that it is bonafide defence or issue to be tried. [4] comprehensive review of the law applicable in summary judgement matters can be found in the judgement of Justice Jamie Saunders in Webber et al v. Canadian Surety Company (4) (1992) 112 N.S.R. (2d) 284. [5] The court must also be aware of the comments made by MacKeigan C.J.N.S. in Lunenburg County Press Ltd. v. Deamond (1977) 18 N.S.R. (2d) 689 at para. 5: We are very conscious, however, as Judge should be in dealing with an application of this sort, that summary judgment is summary proceeding which should not be lightly granted so as to deprive litigant of his right to have any bona fide case disposed of after full trial. We must accordingly allow the appeal and set aside the order of His Honour Judge Burke dated June 14, 1976. We direct that the costs of this appeal and of the application before Judge Burke be costs in the cause of the action.” [6] In this particular application involving a rear-end collision, there is a heavier burden upon the Defendant. This authority can be found in the words of Freeman, J.A. in MacNeil v. Black [1998] N.S.J. No. 83 at paragraph where he said as follows: “A further burden of proof, and considerably heavier one, falls on the defendant in rear‑end collision cases. The driver of the rear car must rebut presumption that the collision occurred as result of his negligence. See the judgment of Roscoe J. in Wilson v. McInnis (1992), 1992 CanLII 4671 (NS SC), 111 N.S.R. (2d) 78. [7] This accident happened at the intersection of Kings Road and Alexander Street in Sydney, Nova Scotia, on the 4th of March, 2004. The Plaintiff was operating her motor vehicle and said in her affidavit that she was struck from behind by one of the Defendants named in the action. [8] In describing how the accident occurred the defendant, Eric Craig stated in his affidavit: “4. THAT the intersection of Kings Road and Alexander Street is governed by traffic lights. As approached the intersection, noticed that there were three or four vehicles ahead of mine, including Pontiac Montana van (“Montana”) being operated by an individual who was later identified to me as the plaintiff, Michelle Fournier, and which was the vehicle immediately ahead of mine. 5. THAT two or three of the vehicles referred to in paragraph above proceeded through the traffic light. As advanced toward the traffic light, my speed was approximately 10 to 15 km per hour. As the traffic light turned red, did not see brake lights on the Montana and the front of my vehicle struck the rear bumper of the Montana.” [9] In second affidavit filed by Michelle Fournier, she stated as follows in paragraph and 5: 4. THAT attached hereto and marked Exhibit “A” by the person swearing this my Affidavit is photo of vehicle similar to the vehicle that was driving, which is Pontiac Montana, and the tail lights are quite high off the ground and would have been visible to any person paying the slightest attention to the vehicle in front of them. 5. THAT have checked with Pat LeBlanc, who repaired my vehicle after the accident and have checked with Shawn Aucoin, who was the insurance adjuster for my insurance, Co-Op Insurance, and both have declared to me that the tail lights were working when took the vehicle to be appraised and took it in for repair. [10] The defendant argues summary judgment ought not to be allowed because there is an arguable issue to be tried, namely, that even if one accepts the evidence of the Plaintiff that one has to consider the issue of contributory negligence. Mr. Craig said in his affidavit, he did not see any brake lights on the Montana. Thus the defendant says there is an issue as to whether or not they were on or working. Secondly, the defence argues there might possibly be contributory negligence issue in this case because the Plaintiff suddenly stopped. [11] adopt the position of Freeman, J.A. in MacNeil Black, supra at para 10, where he said: “The threshold for showing the existence of defence worthy of trial is not high one, but the defendant has not met it. The standard pleading that the plaintiff stopped abruptly, without more by way of supporting facts, lacks an air of reality. It does not meet, nor suggest how the defendant hoped to meet, the plaintiff's assertion that she had been stopped for 45 seconds. It was necessary for the defendant in his pleadings or by way of affidavit or other evidence to assert facts capable, if proven at trial, of rebutting the presumption that the collision resulted from his negligence. The bald statement in the pleadings does not disclose the existence of an actual or probable defence and cannot fend off an application for summary judgment.” [12] have listened to the argument of the defendant and have read her affidavits and material attached thereto. I am satisfied there has to be an “air of realty” to the defendant’s argument. If the brake lights did not work then the defendant drove straight into the rear of the plaintiff’s car. Secondly if the plaintiff stopped suddenly and as the defendant noted in his affidavit, the traffic light turned red then the plaintiff’s vehicle was supposed to stop as well. To strike the plaintiff’s vehicle from behind on these facts then the defendant was travelling too close or didn’t have enough care or control of his vehicle and consequently the collision occurred. In any event, I am satisfied when you read the material there was no “air of reality” to the defendant’s argument. [13] The defendant also argued that plaintiff ought not to be successful in her application for summary judgment because she has not been able to establish the motor vehicle accident resulted in her suffering injuries. The defendant referred to the case of Griffiths Martell [1999] N.S.J. No. 285. At paragraph Hamilton J.A. states as follows: “I considered if this Rule authorizes me to issue summary judgment limited only to liability for the accident itself and not causation, because of its use of the words "a part thereof", but on reading the whole of Civil Procedure Rule 13.01, am satisfied that it means that summary judgment is not to be granted when there is any issue other than the amount of damages still in issue between the parties, which interpret to only be the case after causation has been determined as part of the summary judgment application.” [14] am satisfied upon reading the reports of Doctor Steve Crosby and Doctor Douglas Watt attached as appendix and to the plaintiff’s affidavit that the causation of certain amount of her physical injuries resulted from the accident. [15] I am not satisfied the defendant has met the required burden and I allow the application. Judgement is entered against the respondent/defendant as to liability with damages to be assessed. [16] INTERIM PAYMENT The Plaintiff, now having obtained summary judgement, fulfills the conditional precedent for the application for interim payment under Rule 33.01 (A)(1). Which states as follows: “Nothwithstanding the provision of rule 33.01, the court may order the defendant to make an interim payment of such amount as it thinks just, not exceeding reasonable proportion of the damages which in the opinion of the court are likely to be recovered by the plaintiff after taking into account any relevant contributory negligence and any set off, cross-claim or counter-claim on which the defendant may be entitled to relay, if the court is satisfied: (a) that the defendant against whom the order is sought had admitted liability for the plaintiff’s damages or (b) the plaintiff has obtained judgment against the defendant for damages to be assessed. [17] The general principles involving interim payments where summary judgment has been allowed was discussed in Bogaczewicz Faulkner, [1997] N.S.J. No. 237. See also Mahoney Almeco Leasing Limited [1999] N.S.J. No. 390 and MacDonald MacPherson [1999] N.S.J. No. 283 affirmed on Appeal 1999 N.S.J. No. 445. The case law may be summarized as follows: 1. It is not the function of the Court in determining the matter of an interim payment to make findings of credibility or even to dwell on them. This might ultimately be for Trial Judge at an assessment of damages. 2. An Order of an interim payment is not mandatory. It is discretionary Order of the Chambers Judge. 3. The Court must exercise caution in assessing likely recovery of plaintiff in the early stages of litigation particularly where there is lack of medical opinion in the discovery of experts where necessary. 4. An application under Rule 33.01(A) is not to be trial or mini trial where an estimate of the plaintiff’s ultimate recovery can be difficult and may amount to nothing more than haphazard guess. In such cases the Court should refrain from making an order of interim payment. 5. In cases where there is considerable uncertainty existing as to what is likely to be recovered by the Plaintiff, the proper approach is that where the Court is faced with such degree of uncertainly, it should conclude that it is unable to make determination of reaching an opinion as to what is likely to be recovered in those damage areas of uncertainty. [18] The evidence submitted by way of the Plaintiff’s affidavits causes the court difficulty. The plaintiff is making a significant claim yet when one listens to defendant’s counsel and reads the material attached to the defendant’s affidavit, one concludes there is a significant amount of other factors relating to the health of the plaintiff. There is no doubt this would impact on any assessment of damages that might be made in this particular case. am looking at the evidence submitted in the affidavits without the benefit of any examination or cross examination before me in an attempt to decide what is likely to be recovered by the plaintiff. have however, read the discovery evidence of the plaintiff submitted as attached to the affidavit of Ms. Sandra Arab Clarke, the defendant’s counsel. [19] The plaintiff blames her neck injury, shoulder injuries, tingling in her hands and arms as well as other injuries on the accident. There is conflict in her evidence about her depression and other problems she is having with her health in the report of Doctor Watt dated November 8, 2004 where the plaintiff interpreted comments from visit with her family doctor that her problems were not related to her motor vehicle accident. [20] Defence counsel has gone to great extent to show the Plaintiff’s prior conditions would all combine to contribute in significant way to her current health complaints. These range from an injury to her right shoulder and elbow prior to the motor vehicle accident, tennis elbow in the right arm, malaise and fatigue, pain in joints, as well as obstructive lung defect to name but few. Defence counsel states there is long medical history involved here and has argued strenuously there are credibility issues in relation to certain claims relating to her injuries. [21] It is not the function of this court in determining the matter of an interim payment to make findings of credibility or even to dwell on them. I am satisfied any amount of assessed damages which might be arrived at will depend largely upon credibility and medical evidence at trial. The defendant argues there has yet to even be an independent medical examination of the plaintiff. In my opinion to assess any amount in this case at this point in time would be a most difficult task and would only be a haphazard guess. [22] Serious issues exist between the parties as to whether or not the plaintiff’s injuries sustained in the motor vehicle accident have resulted in any on going inability of the plaintiff to work in any capacity. As well there is question as to her claim involving loss of valuable service as to whether or not the amount claimed is appropriate when the plaintiff stated in discovery that she was able to do some housework and did so. [23] The plaintiff’s damage claim is further complicated in this particular matter as a result of the recent amendments in 2003 to the Insurance Act, R.S.N.S. 1989, C-23, especially as it would relate to non-pecuniary general damages. On the information provided to the Court from both parties it is conceivable with the material before me, the plaintiff’s injuries could be described as minor. If, after trial, Court assessed that Ms. Fournier suffered minor injury, it would bring her under the new legislation. Her general damages could be capped at $2,500. [24] Thus, Court should be extremely cautious in approaching an award in this particular category in absence of significant medical evidence which would clearly establish this injury classification could be overcome. It must be recalled that under the legislation the onus is on the plaintiff to prove that any injuries she sustained are not minor injuries. [25] On a review of the material supplied for this application, I am not satisfied that this is an appropriate case to order an interim payment at this point in time and I decline to do so. In my opinion, to assess any amount of interim payment on facts presented would be most difficult task and would only be haphazard guess. [26] However, as I said before, I would order summary judgment be entered against the defendant with damages to be assessed. [27] Each party having been partially successful, would order no costs to either side. [28] Order accordingly.

The plaintiff, who was injured in a rear-end motor vehicle accident, applied for summary judgment and an interim payment of damages. Application for summary judgment granted; application for interim payment dismissed. There was no 'air of reality' to the defendant's defence; whether or not the plaintiff's brake lights were working, to strike her vehicle from behind on these facts meant that the defendant was either travelling too close or didn't have enough care and control of his vehicle. The plaintiff was making a significant claim for damages but she suffered from numerous previous injuries and conditions relating to her health; any damage assessment would depend largely upon credibility and the medical evidence at trial; to assess interim damages in this case would be a most difficult task and would only be a haphazard guess. The plaintiff's claim was also complicated by the fact that it could possibly be subject to the 'minor injury' cap on damages.

d_2005nssc322.txt

Restriction on Publication An order has been made in accordance with s. 486.4(1) of the Criminal Code and s. 110(1) of the YCJA directing that any information identifying the complainant or the young person shall not be published. Court of Appeal for Saskatchewan Docket: CACR2813 Citation: P.R., 2018 SKCA 27 Date: 2018-04-06 And Her Majesty the Queen Before: Richards C.J.S., Herauf and Schwann JJ.A. Disposition: Sentence appeal allowed; conviction appeal dismissed Written reasons by: The Honourable Mr. Justice Herauf In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Schwann On Appeal From: Provincial Court, Beauval and Meadow Lake Appeal Heard: December 4, 2017 Counsel: Kathy L. Hodgson-Smith for the Appellant Beverly L. Klatt for the Respondent Alan G. McIntyre, Q.C. for Trial Counsel Herauf J.A. I. Introduction [1] The appellant was convicted after trial of sexually assaulting his 11-year-old niece contrary to s. 271 of the Criminal Code, RSC 1985, C-46. The appellant was 17 years old at the time of the offence and was sentenced as youth under the Youth Criminal Justice Act, SC 2002, [YCJA]. The appellant was sentenced to an 18-month custody and supervision order: 12 months to be served in secured custody, followed by months of community supervision. [2] The appellant appeals both his conviction and sentence. The appellant contends the trial judge made errors in assessing the credibility of the witnesses and that he received ineffective trial representation. The appellant also submits the sentence is unfit as it contradicts the principles, purpose and provisions of the YCJA, which support imposing non-custodial sentences for youth offenders. [3] For reasons on which I will elaborate, the conviction appeal is dismissed. The sentence appeal is allowed and the sentence imposed is varied to 12 months of probation. II. BACKGROUND of proceedings [4] Due to the significant length of time it took to conclude the proceedings for this offence, brief overview of the timeline is necessary. [5] The incident that gave rise to the charges against the appellant occurred on or about November 25, 2012. The appellant was released on conditions on November 28, 2012, made his first appearance in court on January 16, 2013, and entered not-guilty plea on March 20, 2013. [6] The trial commenced on August 21, 2013, in Beauval, Saskatchewan. The Crown called the complainant and the complainant’s former babysitter to testify. After the Crown closed its case, the trial was adjourned to December 18, 2013, for defence to call evidence. [7] Unfortunately, and unexpectedly, the trial judge passed away on December 19, 2013. mistrial was entered on January 14, 2014, and new trial was ordered for April 8, 2014. [8] The Crown was unavailable on April 8, 2014, and the trial was rescheduled for May 6, 2014. On May 6, 2014, the appellant failed to appear in court. On May 21, 2014, the appellant appeared without counsel and the matter was rescheduled for June 18, 2014, to allow the appellant to obtain counsel. [9] On June 18, 2014, the appellant appeared with temporary legal representative, who requested an adjournment. The adjournment was granted and the second trial was scheduled for February 18, 2015. The appellant retained different Legal Aid lawyer to represent him at the second trial, who then requested an adjournment to March 3, 2015. [10] On March 3, 2015, the Crown applied to have the complainant testify from soft room. This required change of venue from Beauval to Meadow Lake, which delayed the proceedings until March 20, 2015. [11] The second trial took place on March 20, 2015, in Meadow Lake. At the second trial, the Crown called the complainant, the complainant’s former babysitter and the complainant’s mother as witnesses. The defence called the appellant, his brother and his sister. The trial concluded that same day and the trial judge reserved his decision. [12] On June 2, 2015, the trial judge convicted the appellant of sexual assault. As the Crown was seeking custodial sentence, pre-sentence report was ordered as mandated by s. 39(6) of the YCJA. Sentencing submissions were adjourned pending the completion of the report. On August 4, 2015, the parties were ready to make submissions but the pre-sentence report was not completed. Submissions were adjourned to November 3, 2015. [13] The appellant retained new Legal Aid representation for the sentencing hearing. The sentencing submissions were adjourned three times (November 3, 2015, January 5, 2016, and March 1, 2016) on the request of both the Crown and defence. Submissions were made on May 3, 2016, after which the judge reserved his decision. [14] Nearly four years after the offence occurred, the appellant received his sentence. On June 7, 2016, the appellant was sentenced to an 18-month custody and supervision order. [15] The appellant appealed his conviction and sentence to this Court on June 24, 2016. The appellant was released on conditions pending the disposition of the appeal. His appeal was heard by this Court on December 4, 2017, which was over five years from the date of the offence. III. The Trial Decision A. The evidence at the second trial 1. The complainant’s testimony [16] The complainant testified that she and the appellant walked to the appellant’s house, sat on the couch in the living room for 15 minutes, and then the appellant told her to go into another room. Once in the bedroom, the appellant asked her to lie down with him and he had sexual intercourse with her. The complainant testified that she did not want to have sexual intercourse with the appellant. [17] The complainant also gave evidence that the appellant’s brother and sister were home at the relevant time and the brother was on the computer in the living room. Once she left the appellant’s house, the complainant contacted her former babysitter and told her what had occurred. The former babysitter then told the complainant’s mother, and the complainant’s mother and the complainant went to the police. 2. The former babysitter’s testimony [18] The former babysitter testified that the complainant contacted her about the sexual assault the night of the offence and, when the complainant spoke with her, she was crying and emotional. She testified she later contacted the complainant’s mother while the complainant’s mother was at work to tell her about the sexual assault. 3. The mother’s testimony [19] The complainant’s mother testified that she had become aware of the incident when she received telephone call from the complaint’s former babysitter while at work. She then left work and took her daughter to the police. She testified that her daughter was very scared and emotional. 4. The appellant’s testimony [20] The appellant testified that the complainant approached him on the street asking to use his bathroom and looking for cigarette. She came into his house, used the bathroom, sat down on the couch in the living room and left ten minutes later. The appellant testified that his brother was in the living room on the computer while the complainant was at the house. He denied taking the complainant to the bedroom and denied having sexual intercourse with her. 5. The brother’s testimony [21] The appellant’s brother testified that he was at home on the computer and watching television in the living room when the complainant was at the house. He testified that the complainant sat down on the couch, used the washroom, and left five or ten minutes later. The brother testified that, aside from using the washroom, the complainant stayed in the living room for the duration of her stay and that he never saw her go into the appellant’s bedroom. 6. The sister’s testimony [22] The appellant’s sister testified that she was home at the relevant time but was in and out of her bedroom and was sleeping part of the time. She testified that her bedroom did not have door and when she came out of her bedroom to get drink, she saw the complainant on the couch in the living room, her brother on the computer in the living room, and the appellant on the telephone. She testified that the complainant was there for five to ten minutes. B. Conviction and sentence [23] The trial judge accepted the complainant’s evidence and made the following findings of fact: (i) the appellant and the complainant were at the appellant’s house; (ii) the appellant asked the complainant to join him in his bedroom; and (iii) after talking for while in the bedroom, the parties had sexual intercourse. [24] The trial judge found the appellant’s testimony was complete denial of the events and determined his evidence did not raise reasonable doubt as to whether the sexual assault occurred based on his findings of fact from the complainant’s evidence pursuant to the credibility procedure articulated in W.(D.), 1991 CanLII 93 (SCC), [1991] [25] The trial judge rejected most of the siblings’ testimony. He concluded they were both distracted while the complainant was at the house and therefore were unable to observe the complainant the entire time. The trial judge expressed concern with the reliability of the siblings’ evidence due to their relationship with the appellant, finding this put them in difficult and biased position: ... But although [H.] and [J.] both testify that the complainant complainant was never in the accused’s bedroom. find that that first of all, both individuals are are in difficult position and are biased with the accused being their brother. Secondly, [J.] was in and out in and out of her bedroom while the complainant was there, so couldn’t have seen the complainant for the entire time. As for [H.], he was on the computer watching TV, so his attention was also not on the complainant at all times. (Transcript at T140) [26] Based on his assessment of credibility, his weighing of the evidence, and his findings of fact, the trial judge convicted the appellant of sexual assault. [27] The trial judge recognized the restrictions on imposing custodial sentence unless the gateway to custody was open pursuant to s. 39(1) of the YCJA. The trial judge concluded the option of custodial sentence was open in this case because the sexual assault caused the complainant serious bodily harm and constituted violent offence pursuant to s. 39(1)(a) of the YCJA. [28] After determining the custodial sentence was possibility, the trial judge considered whether there was non-custodial sentencing alternative that would fulfill the principles and purposes of sentencing contained in s. 38 of the YCJA. [29] Upon considering the circumstances of the appellant, sentences imposed in similar circumstances, and the likelihood of the appellant’s compliance with non-custodial sentence, the sentencing judge concluded: It is more likely than not that the accused would comply with the condition conditions of non-custodial sentence. However, find that given the seriousness of the offence and the fact that that denunciation and deterrence must take paramountcy, that given the degree of responsibility of the accused in this case, that there are no alternatives to custody that are reasonable in the circumstances. (T175, emphasis added) [30] Upon determining the principles of denunciation and deterrence were paramount sentencing principles in the circumstances, the trial judge sentenced the appellant to an 18-month custody and supervision order: 12 months to be served in closed custody followed by months of community supervision. [31] The appellant’s appeal raises the following issues: (a) Did the appellant receive ineffective legal representation at the second trial? (b) Did the trial judge err in his credibility assessment? (c) In sentencing the appellant, did the trial judge err in his consideration and application of the relevant principles and purposes of sentencing under the YCJA? V. Analysis A. Fresh evidence application [32] In support of his conviction appeal, the appellant made fresh evidence application. The appellant applied to admit into evidence the transcript from the first trial and an affidavit of the appellant, which outlines discussions between the appellant and his counsel prior to and during the second trial. Attached as exhibits to the appellant’s affidavit is copy of the complainant’s statements to the police taken on November 29, 2012, and December 22, 2012. [33] As this evidence was not before the trial judge, the evidence must meet the criteria for the admission of fresh evidence as set forth in Palmer (1979), 1979 CanLII (SCC), [1980] SCR 759 at 775: (1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in criminal case as in civil cases. (2) The evidence must be relevant in the sense that it bears upon decisive or potentially decisive issue in the trial. (3) The evidence must be credible in the sense that it is reasonably capable of belief; and, (4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result. [34] The nature of the evidence the appellant seeks to introduce relates to his allegation of incompetent counsel. Therefore, the threshold criteria articulated in Worm, 2014 SKCA 94 (CanLII), 442 Sask 228, applies: [111] In R. v. S.G.T., Wilkinson J. (ad hoc) noted that threshold criterion for the admission of fresh evidence in cases where trial fairness is at issue due to allegations of incompetent counsel is that the new information must be clear and convincing, otherwise it will not be admitted. She said this is because, in cases like this, the usual criteria for the admission of fresh evidence set forth in cases such as R. v. Palmer (1979), 1979 CanLII (SCC), [1980] S.C.R. 759, fall to the broader concerns of trial fairness, regularity of the trial process and avoidance of miscarriages of justice. [35] The transcripts from the first trial are necessary to review the allegations that the appellant’s trial counsel at the second trial failed to cross-examine Crown witnesses on perceived material inconsistencies between their testimony and their evidence given at the first trial. They are relevant to the allegation of incompetent trial counsel claim and to ensure this Court has the complete record for which to assess the merits of the allegation. [36] Similarly, the affidavit and the exhibited police statements are relevant to the appeal. The Crown did not object to the admission of the affidavit of the appellant, which included the statements of the complainant to the police exhibited to the affidavit. Counsel for the former trial counsel took no position. [37] conclude the evidence satisfies the threshold for admission as set out in Worm and grant the appellant’s fresh evidence application. The fresh evidence will be considered as it relates to the conviction appeal. B. Incompetent trial counsel claim [38] The appellant submits he received ineffective legal representation at his second trial and alleges his counsel failed to cross-examine the complainant on her many inconsistent statements. The appellant submits this failure resulted in the trial judge making erroneous credibility assessments that, given the importance of credibility to the conviction, puts the reliability of the verdict into question. [39] The evidentiary onus on an appellant alleging incompetent counsel was outlined in Short, 2012 SKCA 85 (CanLII) at para 5, 399 Sask 192: ... First, the appellant must establish the facts, including the acts or omissions of trial counsel, upon which the claim of incompetence is based. Second, the appellant must establish that the representation provided by trial counsel was incompetent. Third, the appellant must establish that the incompetent representation resulted in miscarriage of justice. [40] Trial counsel’s conduct is subject to strong presumption of competence: G.D.B., 2000 SCC 22 (CanLII), [2000] SCR 520; Kim, 2011 SKCA 74 (CanLII) at para 36, 375 Sask 68, leave to appeal to SCC dismissed, [2012] SCR ix. The presumption of competence is only displaced if the appellant can prove, on balance of probabilities, that trial counsel’s acts or omissions fell outside the range of “reasonable professional assistance”: Short at para 6. [41] The reasonableness standard of assessment necessarily protects wide range of professional legal assistance, as no two lawyers will defend an accused in exactly the same way. The benefit of hindsight, or an argument that another counsel would have acted differently in the circumstances, has no place in an appellate court’s assessment of whether trial counsel acted competently: Short at para 6. Lawyers must be given latitude to utilize trial strategies to address the diverse legal, factual and procedural circumstances that arise in each case. [42] The appellant has the onus of establishing that his counsel’s professional judgment was unreasonable in the circumstances and that this unreasonable professional judgment caused miscarriage of justice: G.D.B. at para 27. While the appellant has identified certain inconsistent statements in respect of which his counsel did not cross-examine the complainant, he has failed to establish these omissions amount to unreasonable professional judgment that reach the threshold of incompetence. [43] The art of cross-examination necessarily includes an element of trial strategy. Upon review of the circumstances in this case, am of the opinion it is reasonable to assume counsel’s decision to not cross-examine the complainant on certain inconsistencies was tactical decision. The complainant was very young at the time of the sexual assault and, at both trials, and it was obvious she was having difficulty expressing herself, seeking the protection of soft room at the second trial. It is appropriate to conclude counsel was aware of the clear, coherent and detailed statements the complainant had provided to the police shortly after the offence and that he strategically determined it was not beneficial to his client’s position to highlight those statements by raising certain inconsistencies between them and the testimony of the complainant. [44] Given the circumstances of the case, counsel had to determine whether certain lines of questioning would be beneficial or prejudicial to his client’s case. am of the opinion counsel’s approach to cross-examination in this case does not merit finding of incompetent trial counsel pursuant to G.D.B. and Short. Therefore, this ground of appeal must be dismissed. C. Alleged error in credibility assessment [45] The appellant submits the trial judge erred in his assessment of the credibility of the witnesses, namely, the complainant’s former babysitter and the appellant’s siblings. The appellant alleges this error resulted in an unreasonable verdict. [46] The appellant argues the trial judge erred in rejecting the sister’s evidence because even though she was distracted at the house, her evidence was both credible and vital to determining the guilt of the appellant. The appellant submits the trial judge erred in not accepting parts of the sister’s testimony, including the timeframe the complainant was in the house. [47] The appellant contends the brother’s evidence was the most reliable since he was in the living room and observed the complainant for the duration of her time at the house. Given the relevance of the brother’s evidence, the appellant submits it was an error to reject the entirety of that evidence on the basis of his familial relations to the appellant and potential bias. [48] The appellant also submits it was an error for the trial judge to accept and rely upon the evidence of the former babysitter because she changed her evidence between the two trials. The appellant submits the former babysitter testified at the first trial that the complainant contacted her the day after the offence, whereas at the second trial she testified the complainant contacted her the day of the offence. The appellant submits the former babysitter was an incredible witness and therefore her evidence should not have been relied upon. [49] It is well understood that an appellate court must show “great deference” to a trial judge’s assessment of witness credibility: W.(R.), 1992 CanLII 56 (SCC), [1992] SCR 122 at 131; François, 1994 CanLII 52 (SCC), [1994] SCR 827; Baxter, 2013 SKCA 52 (CanLII) at para 46, 414 Sask 184. Where an unreasonable verdict is alleged and the verdict is based on credibility assessment, an appellate court may only interfere if the verdict “cannot be supported on any reasonable view of the evidence”: Frances, 2017 SKCA 109 (CanLII) at para 3; Burke, 1996 CanLII 229 (SCC), [1996] SCR 474 at para 7; R.P., 2012 SCC 22 (CanLII) at para 10, [2012] [50] The verdict in this case came down to question of credibility. The trial judge correctly identified R v W.(D.), as the guiding legal principle in such circumstances. [51] The trial judge considered the evidence of the witnesses. He rejected the evidence of the siblings that the complainant was only at the house for five or ten minutes and that she never went into the bedroom. The trial judge gave reasons for rejecting these aspects of their testimony, namely that both siblings had been distracted while the complainant was at the house and that their relationship to the accused weakened the credibility of their testimony. [52] The trial judge made no specific findings of fact related to reliability or credibility of the former babysitter. It does not appear the trial judge relied on her testimony in any significant way, other than to say the complainant’s condition when she told the former babysitter was “consistent with someone having experienced this type of event” (at T140). am not convinced this reference had significant impact on the trial judge’s determination of the appellant’s guilt as the basis of the conviction stems from the trial judge’s findings of fact based on the complainant’s testimony. [53] The appellant has failed to convince me there is any reasonable basis upon which to question the trial judge’s credibility assessment of the former babysitter. Beyond that, am of the opinion his minimal reliance on the former babysitter’s evidence to assess the condition of the complainant after the offence had no meaningful impact on the verdict. [54] As noted, the trial judge properly instructed himself pursuant to the process outlined in W.(D.) to determine whether on the basis of the evidence that he had accepted, he was convinced beyond reasonable doubt of the appellant’s guilt. In particular, he said: Having considered all of the evidence, including that of the accused, and and as applied against the law as set out in the case of R. v. W.(D.) excuse me find as fact that on the date in question the complainant was at the accused’s residence. Furthermore, find as fact that the accused asked the complainant into his bedroom. That after they talked for while they banged. That the word banged used by the complainant means sexual intercourse for her. As for the accused’s evidence, find that it is is [sic], in fact, complete denial of the events for the date in question and does not raise reasonable doubt of the complainant’s evidence, which is, in fact, corroborated by other evidence leading up to the critical event, including the events afterwards when she’s seen leaving the house by the accused’s siblings. (T139–T140) [55] The trial judge was in the best position to assess the demeanor of the witnesses and draw conclusion on the credibility of their testimony: François at 836–837. This Court is not entitled to revisit the evidence in piecemeal fashion, deconstructing the trial judge’s findings and inferences of fact and his assessments of witness credibility. As has been observed in other appeals, it is difficult to succeed on an unreasonable verdict allegation for verdicts that rely on credibility assessments as the credibility assessment will not be deemed “unreasonable” unless it “cannot be supported on any reasonable view of the evidence” (emphasis added): Burke at para 7; R.P. at para 10; Baxter at para 46. [56] find no reversible error in the trial judge’s assessment of the credibility of the appellant’s siblings or the complainant’s former babysitter. The trial judge’s credibility findings are supportable on the evidence. The trial judge properly instructed himself pursuant to R v W.(D.) and I see no basis to interfere with the conviction. [57] Therefore, the appellant’s conviction appeal is dismissed. D. Sentence appeal [58] The appellant submits the trial judge failed to adhere to and properly apply the principles and purposes of sentencing pursuant to the YCJA. The appellant also submits these errors resulted in the trial judge imposing custodial sentence when there were reasonable non-custodial sentences available in the circumstances. The appellant contends the custodial sentence is therefore unfit and asks this Court to vary the sentence imposed. [59] Sentencing judges have wide discretion to impose sentences that are within the limits of the law. Pursuant to Lacasse, 2015 SCC 64 (CanLII), [2015] SCR 1089, an appellate court may not interfere with sentence simply because it would have imposed different sentence. The circumstances upon which an appellate court may intervene with sentence was summarized by Richards C.J.S. in L.V., 2016 SKCA 74 (CanLII), 480 Sask 181: [74] In the end, therefore, Lacasse indicates that an appellate court may substitute its own sense of an appropriate sentence for the one imposed by trial level court in only two circumstances. The first is when the sentence imposed by the trial level court is demonstrably unfit. The second is when the trial level court made an error in principle, failed to consider relevant factor, or gave erroneous consideration to an aggravating or mitigating factor and that error had an impact on the sentence. [60] For reasons on which will elaborate, find the sentencing judge committed an error in principle when he emphasized denunciation and deterrence as the paramount sentencing objectives. This error impacted the sentence imposed and, therefore, pursuant to Lacasse, am permitted to substitute it with fit sentence. 1. Undue emphasis on deterrence and denunciation [61] The YCJA provides detailed sentencing code that dictates what principles and factors must be considered when sentencing youth offenders. The focus of sentencing under the YCJA is “balancing conflicting principles to arrive at sentence tailored to the individual circumstances”: Okemow, 2017 MBCA 59 (CanLII) at para 47. Sentencing youth pursuant to the YCJA mandates context-specific approach; an approach that differs entirely from the sentencing regime for adult offenders. [62] The sentencing principles for youth pursuant to the YCJA are enumerated in the Act’s Preamble, its Declaration of Principle in s. 3, and the detailed sentencing principles in s. 38. The constant theme woven through these provisions is that youth sentence seeks to ensure meaningful accountability through restorative sentences, as opposed to reliance on incarceration, to promote the long-term protection of the public. [63] The Preamble to the YCJA states the primary purpose of the legislation is to ensure youth criminal justice system that: ... commands respect, takes into account the interests of victims, fosters responsibility and ensures accountability through meaningful consequences and effective rehabilitation and reintegration, and that reserves its most serious intervention for the most serious crimes and reduces the over-reliance on incarceration for non-violent young persons. [64] This theme is reinforced in the declaratory principles found in s. 3: 3(1) The following principles apply in this Act: (a) the youth criminal justice system is intended to protect the public by (i) holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person, (ii) promoting the rehabilitation and reintegration of young persons who have committed offences, and (iii) supporting the prevention of crime by referring young persons to programs or agencies in the community to address the circumstances underlying their offending behaviour; (b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (i) rehabilitation and reintegration, (ii) fair and proportionate accountability that is consistent with the greater dependency of young persons and their reduced level of maturity, (iii) enhanced procedural protection to ensure that young persons are treated fairly and that their rights, including their right to privacy, are protected, (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (c) within the limits of fair and proportionate accountability, the measures taken against young persons who commit offences should (i) reinforce respect for societal values, (ii) encourage the repair of harm done to victims and the community, (iii) be meaningful for the individual young person given his or her needs and level of development and, where appropriate, involve the parents, the extended family, the community and social or other agencies in the young person’s rehabilitation and reintegration, and (iv) respect gender, ethnic, cultural and linguistic differences and respond to the needs of aboriginal young persons and of young persons with special requirements; and (d) special considerations apply in respect of proceedings against young persons and, in particular, (i) young persons have rights and freedoms in their own right, such as right to be heard in the course of and to participate in the processes, other than the decision to prosecute, that lead to decisions that affect them, and young persons have special guarantees of their rights and freedoms, (ii) victims should be treated with courtesy, compassion and respect for their dignity and privacy and should suffer the minimum degree of inconvenience as result of their involvement with the youth criminal justice system, (iii) victims should be provided with information about the proceedings and given an opportunity to participate and be heard, and (iv) parents should be informed of measures or proceedings involving their children and encouraged to support them in addressing their offending behaviour. [65] The principles in s. indicate that “fair and proportionate accountability” is the central principle for the sentencing of youth offenders and advocate for restorative rather than custodial sentences to achieve fair and proportionate accountability. These principles are expanded in s. 38, which enumerates the more explicit and directive sentencing purposes and principles for youth offenders: Purpose 38 (1) The purpose of sentencing under section 42 (youth sentences) is to hold young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public. Sentencing principles (2) youth justice court that imposes youth sentence on young person shall determine the sentence in accordance with the principles set out in section and the following principles: (a) the sentence must not result in punishment that is greater than the punishment that would be appropriate for an adult who has been convicted of the same offence committed in similar circumstances; (b) the sentence must be similar to the sentences imposed in the region on similar young persons found guilty of the same offence committed in similar circumstances; (c) the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence; (d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons; (e) subject to paragraph (c), the sentence must: (i) be the least restrictive sentence that is capable of achieving the purpose set out in subsection (1), (ii) be the one that is most likely to rehabilitate the young person and reintegrate him or her into society, and (iii) promote sense of responsibility in the young person, and an acknowledgement of the harm done to victims and the community; and (f) subject to paragraph (c), the sentence may have the following objectives: (i) to denounce unlawful conduct, and (ii) to deter the young person from committing offences. (Emphasis added) [66] The use of the word “shall” in the introductory clause to s. 38(2) and the word “must” and “should” in ss. 38(2)(a) to (e) indicate that youth sentencing judges are required to impose sentence that is in accordance with the principles in s. 3, as well as the specific sentencing principles enumerated in those provisions. They remind judges to reserve the use of custodial sentence for the most serious offenders and only when non-custodial sentence would be unable to ensure meaningful accountability and promote the long-term protection of the public. [67] In comparison, the use of the word “may” in s. 38(2)(f) connotes permissive, rather than obligatory, consideration of denunciation and deterrence as sentencing objectives for youth offenders. Judges are permitted to consider the objectives of denunciation and deterrence specific deterrence only when sentencing youth, however, reliance on either is discretionary: Okemow at para 57. If denunciation and deterrence are considered, they must be considered alongside the other sentencing principles expressed in the preamble, the declaratory principles in s. 3, and the mandatory sentencing principles in s. 38. [68] It should be noted that, when first enacted in 2003, the YCJA did not include reference to denunciation and deterrence as sentencing objectives for youth. These provisions were added to the Act through amendments contained in the Safe Streets and Communities Act, SC 2012, 1, in 2012. [69] The jurisprudence prior to 2012 indicates there was subtle, but important distinction, between deterrence being an effect of youth sentences rather than primary sentencing purpose (Nicholas Bala Sanjeev Anand, Youth Criminal Justice Law, 3d ed (Toronto: Irwin Law, 2012) at 125 [Bala Anand]). This distinction corresponds with the extensive body of social science research that has concluded deterrence as sentencing objective does not effectively deter criminal behavior. [70] Prior to 2012, denunciation was considered in similar fashion as deterrence in that judges turned their mind to the concept but did not consider it primary sentencing principle. Youth sentencing judges recognized the judicial system’s role in reinforcing fundamental social values and in condemning harmful behavior and therefore, when sentencing youth, judges considered the denunciating effect the sentence should have: see M.A.H., 2006 SKCA 114 (CanLII), 285 Sask 284; S.S., 2008 ONCA 140 (CanLII), 232 CCC (3d) 158. [71] Recognizing that the concepts of deterrence and denunciation were secondary factors already considered when imposing youth sentences prior to the 2012 amendments, the addition of s. 38(2)(f) in 2012 has been observed as imposing a relatively insignificant change to the approach sentencing judges took prior to 2012. [72] The Manitoba Court of Appeal discussed the impact of the amendments in Okemow: [47] Because there is no fundamental principle in the sentencing of young persons, the effect of the 2012 amendments to the YCJA should not be overstated. The focus of sentencing under the YCJA remains about balancing conflicting principles to arrive at sentence tailored to the individualized circumstances (see (LR) (2004), 2004 NBCA 76 (CanLII), 200 C.C.C. (3d) 472 at para (NBCA); and Quebec (Minister of Justice) at para 131). To some degree, the 2012 amendments represent philosophical shift in the YCJA, but it is not tectonic one for sentencing non-violent and non-repeat offenders. The Hon Rob Nicholson, Minister of Justice and Attorney General of Canada, advised Parliament that the intent behind the 2012 amendments to the YCJA was “to strengthen its handling of violent and repeat young offenders” (House of Commons Debates, 41st Parl, 1st Sess, No 017 (21 September, 2011) at 1525). In my view, the revised wording of the YCJA still has at its core the philosophy that the custodial remedy is last-resort option (see section 39(2) of the YCJA), reserved for discrete type of offender and, when used, it must be for the shortest duration possible in the circumstances. (Emphasis added) [73] The Manitoba Court of Appeal in Okemow highlighted the discretionary nature of deterrence and denunciation as sentencing considerations and cautioned against an over-reliance on those objectives in sentencing youth: [69] In some cases, where there is not diminished moral blameworthiness, due to the serious nature of the offence or the lengthy criminal history of the young person, it may be very difficult for the youth justice court judge to impose proportionate sentence without giving appropriate weight to the objectives of denunciation and/or specific deterrence. This new feature of the YCJA must, however, be understood properly in its limited context and applied cautiously in practice. Parliament has not called for increasing the rate of incarceration of young persons or changing its approach to sentencing for the vast majority of young persons who fall into trouble with the law. Rather, it has built measures into the YCJA to address deficiencies in the process that it perceived existed in relation to small but important subset of offenders, those committing serious crimes or serial offenders, where the presumption of diminished moral blameworthiness is rebutted in relation to the particular offence(s). This is entirely in keeping with this aspect of the preamble of the YCJA. (Italics emphasis added, underline emphasis in original) [74] According to Bala & Anand: “the 2012 amendments add specific deterrence and denunciation as sentencing factors for youth offenders, but these factors are to be considered in a fashion consistent with the principle of ‘diminished moral blameworthiness’ in section 3, and hence are of lesser importance than they are for adults” (at 128). [75] In my view, the YCJA establishes sentencing philosophy that promotes meaningful consequences and ensures accountability through rehabilitation and reintegration methods, as opposed to focusing on denunciation and deterrence to impose custodial sentences. Although denunciation and deterrence may be considered in determining the appropriate sentence for youth offender, they must not be the sole objectives considered and they must not take paramountcy over the other sentencing principles contained in the YCJA. [76] In this case, it is clear the sentencing judge considered the objectives of denunciation and deterrence to be the paramount sentencing considerations. This undue emphasis resulted in the sentencing judge failing to give proper consideration to the other, mandatory, sentencing principles contained in the YCJA. The sentencing judge failed to adhere to the sentencing directions contained in the YCJA and this represents an error in principle. 2. fit sentence [77] Due to the conclusion that the sentencing judge committed an error in principle that impacted the sentence imposed, this Court is permitted to determine fit sentence for the appellant in the circumstances. [78] This was major sexual assault that included sexual intercourse. The victim was 11 years old and was the appellant’s niece. The sexual assault caused the victim serious psychological harm. Generally speaking, major sexual assaults such as this merit custodial sentence in order to reflect the seriousness of the offence and to hold the youth accountable, unless there are unique circumstances that dictate non-custodial sentence is reasonable in the circumstances: see C.(V.I.) (2005), 2005 SKCA 95 (CanLII), 269 Sask 131 (CA).; C.S.U., 2006 SKCA 120 (CanLII), 289 Sask 28; J.A.H., 2016 MBCA 58 (CanLII), 330 Man (2d) 93; A.(J.), 2012 ONCJ 544 (CanLII); S.(C.), 2013 ONCJ 289 (CanLII); H.(D.), 2014 ONCJ 254 (CanLII); S.S.; N.C., 2015 SKPC 79 (CanLII), 474 Sask 299. [79] The facts surrounding this offence are extremely troubling and, at first blush, could lead one to conclude custodial sentence is the only fit sentence. However, am of the opinion the significant delay in concluding this case and the appellant’s positive lifestyle choices since the offence dictate that the appropriate sentence is 12-month probation order. As well, probationary sentence will better serve the long-term protection of the public and will promote the rehabilitation and reintegration of the appellant. 3. The principle of timely justice [80] As discussed above, the duration of time it took to conclude this case is significant. The sexual assault occurred on or about November 25, 2012. The appellant was found guilty after trial on March 20, 2015. The appellant was sentenced on June 7, 2016, nearly four years after the offence occurred. [81] The concept of timely justice is fundamental principle in our criminal justice system and one that holds special importance for adolescents. Not only are youth offenders entitled to the right to be tried within reasonable time enshrined in s. 11(b) of the Charter, the YCJA dictates timely justice when dealing with youth offenders. [82] Section of YCJA specifically enumerates the importance of timely justice in the declaratory principles provision: 3(1) The following principles apply in this Act: (b) the criminal justice system for young persons must be separate from that of adults, must be based on the principle of diminished moral blameworthiness or culpability and must emphasize the following: (iv) timely intervention that reinforces the link between the offending behaviour and its consequences, and (v) the promptness and speed with which persons responsible for enforcing this Act must act, given young persons’ perception of time; (Emphasis added) [83] The codification of the principle of timely justice in the YCJA is premised on the knowledge that time holds special relevance to young people and that this demands promptness from the criminal justice system. To ensure youth is held accountable through meaningful sanctions and to ensure the principles of the YCJA are upheld, proceedings under the YCJA must be conducted promptly: Okemow at para 145; M.(G.C.) (1991), 1991 CanLII 7057 (ON CA), 65 CCC (3d) 232 (Ont CA) at para 16; Bala Anand at 144. [84] Adolescents perceive time differently than adults and the passage of time has greater impact on young persons. In addition, adolescents have less-developed memories. Therefore, to ensure young person understands the relationship between his or her behavior and the consequences that flow from it, sanctions must be imposed promptly following the offending behavior. [85] The Ontario Court of Appeal discussed the importance of conducting youth proceedings promptly in M.(G.C) at 240: ... Delay, which may be reasonable in the adult criminal justice system, may not be reasonable in the youth court. There are sound reasons for this. They include the well-established fact that the ability of young person to appreciate the connection between behaviour and its consequences is less developed than an adult’s. For young persons, the effect of time may be distorted. If treatment is required and is to be made part of the Young Offenders Act disposition process, it is best begun with as little delay as is possible. [86] Although this case dealt with the Young Offenders Act, RSC 1985, Y-1 (repealed), the predecessor to the YCJA, the fundamental principle of timely justice for youths remains applicable and arguably is of increased importance given the specific enumeration of the principle of timely justice in ss. 3(b)(iv) and (v) of the YCJA: T.R. (2005), 2005 CanLII 18709 (ON CA), 197 CCC (3d) 14 (Ont CA). [87] In the appellant’s circumstances, there was delay of three years and seven months from the commission of the offence to the time of sentencing. There has been an additional delay of almost two years pending appeal. While recognize some of the delay was due to unforeseen and uncontrollable variables, the significant passage of time to conclude these proceedings cannot be ignored. As per S.S., the substantial period of time between the offence and the appeal is an important consideration when an appellate court is asked to consider the present fitness of sentence (at para 49). [88] As discussed above, the purpose of the YCJA is to promote the long-term protection of the public by imposing meaningful consequences, with view to rehabilitating and reintegrating the youth offender. The YCJA’s goal of imposing meaningful consequences that ensure sense of accountability in the youth is best achieved when the consequences occur within relatively short time from the commission of the offence. [89] I am of the view that, considering the significant passage of time, imposing a custodial sentence would be contrary to the purposes of the YCJA as it is contrary to the long-term protection of the public given that it is unlikely to promote, and may in fact impede, the appellant’s rehabilitation and reintegration into society. [90] In B.S., 2017 MBCA 102 (CanLII), the Manitoba Court of Appeal varied youth’s custodial sentence for major sexual assault to period of probation. The youth had been sentenced to six months of deferred custody and supervision followed by twelve months of probation. The Court of Appeal determined the sentence was illegal as the offence caused “serious bodily harm”, therefore deferred custody and supervision order was precluded by law pursuant to s. 42(5). [91] In its analysis of the fit sentence, the Court of Appeal noted that given the seriousness of the offence, the statutory preclusion of deferred custody and supervision order makes custody and supervision order the only realistic sentence “absent exceptional circumstances” (at para 10). The Court noted that five-month custody and supervision order would have been the fit sentence at the time of sentencing, however the circumstances of this youth at the time of the appeal qualified as exceptional and dictated period of probation as the appropriate sentence. The exceptional circumstances guiding the Manitoba Court of Appeal to this conclusion were the two-year delay between the offence and the disposition of the appeal, the youth’s adherence to release conditions for two months, the two-and-a-half months he served on his deferred custody and supervision sentence before the sentence was stayed pending appeal, and the fact “the Crown took no position as to whether the young person’s sentence should be stayed in light of these circumstances” (at para 13). [92] The Manitoba Court of Appeal concluded that “placing the young person in custody would not be in the interests of justice” (at para 14). The court varied the deferred custody and supervision order to five-month custody and supervision order, but stayed the custody and supervision order, leaving the youth to serve 12 months of probation as his sentence (para 15). [93] This case is instructive and helpful when considering the appropriate sentence to impose for the appellant in the circumstances before us. This was major sexual assault, which merits meaningful and proportionate sentence to hold the appellant accountable for his actions. While conclude major sexual assaults should generally attract custodial sentence, the unique circumstances of this case, including the significant delay, the appellant’s age at the time of sentencing, his good conduct since the offence, and his compliance with release conditions, have convinced me that the principles and objectives of sentencing pursuant to the YCJA are more meaningfully achieved through the imposition of non-custodial sentence. [94] The appellant was 17 years old at the time of the offence, 20 years old at the time of sentencing, and 22 years old at the time of the appeal. The appellant turned 20 years old while awaiting the disposition of his sentence. As was the case in J.B. and S.S., the appellant would now be required to serve custodial sentence in an adult facility pursuant to s. 89(1) of the YCJA. 22 year old is different person than 17 year old: S.S. at para 54. [95] agree with the premise that significant delay between the commission of the offence and the time of an appeal is worthy consideration when determining the fitness of sentence for youth offender. In particular, the impact of sending youth offender to an adult facility due to lengthy delay caused by the justice system is factor an appellate court must consider when determining the fit sentence for youth. [96] Since the commission of the offence, the appellant has made positive lifestyle choices while on release. He has maintained steady employment and has been attending Northlands College with near perfect attendance record. He has applied to continue his education in trades program after completion of his GED. His employers speak highly of him and he has good family support. He is the father of four-year-old daughter for whom he provides financial support and child care to enable the mother to attend school. [97] At the time of sentencing, the accused had no prior criminal record and the sentencing judge made note of the fact that in the nearly three-and-a-half-years since the commission of the offence, the appellant did not incur any new criminal charges. The only major risk concern identified in the appellant’s pre-sentence report was lack of leisure/recreation activities but on appeal he discussed his many recreational interests including playing sports with friends and fishing with his mother. [98] The appellant’s positive conduct in the community since the commission of the offence promotes confidence that his rehabilitation and reintegration into society will endure if he is permitted to remain in the community. In comparison, sending the appellant to an adult correctional facility would most likely hinder his rehabilitation and reintegration, as it would expose him to different social network and remove him from the stability and support of his family. [99] The benefit of non-custodial sentence to facilitate the continued rehabilitation of youth offender was discussed in N.C. and find it aptly applies in these circumstances: [20] The goal of sentencing under the YCJA is to ensure the long-term protection of the public. If N.C. is taken away from his family and placed in secure custody facility, he is going to meet new friends who are at much higher risk than he. He may learn things there he would be better off not knowing. He is likely to come out higher risk to commit all kinds of offences. This would reduce public safety, not enhance it. rehabilitative sentence is the most likely to ensure the long-term protection of the public. find the best way to rehabilitate N.C. is to allow him to remain in the community and take appropriate treatment and education. [100] further consideration to determine the appropriate sentence is the fact the appellant’s liberty interests have been constrained for lengthy period of time. The delay in this case has resulted in the appellant being on release conditions for nearly five years. In addition to the release conditions pending trial, the appellant was released on judicial interim release conditions pending the disposition of this appeal, to which he has fully complied. [101] The lapse of nearly four years between the offence and sentencing contradicts the principles that youth intervention should be timely and prompt pursuant to ss. 3(1)(b)(iv) and (v) of the YJCA. A custodial sentence at this point, five years after the offence occurred, would not serve the objectives and principles of the YCJA, including “timely intervention”, compliance with youth’s “perception of time” and imposing meaningful sanctions that promote rehabilitation and reintegration. [102] Upon consideration of the appellant’s positive conduct in the community since the offence, the restriction on his liberty since 2012, and the fact he would be required to serve custodial sentence in an adult facility, am of the view the principles of sentencing in the YCJA are best fulfilled at this juncture by period of probation. [103] emphasize the Court’s recognition and denunciation of this extremely serious offence. reinforce that offences of this nature generally merit custodial sentence to hold the offender accountable and to provide meaningful consequences for the criminal conduct. However, exceptional circumstances must be taken into consideration when they arise. Courts cannot lose sight of the fact that sentencing youth offenders pursuant to the YCJA is contextualized process and mandates unique lens in which to assess the fitness of sentence. [104] Therefore, I conclude the objectives and principles of the YCJA are best fulfilled by a sentence of 12 months of probation. would invite counsel to file written submissions as to the appropriate conditions within the two weeks from the date of this judgment. Conclusion [105] In the result, the conviction appeal is dismissed. Leave to appeal the sentence is granted and the 18-month custody and supervision order is varied to a probationary term of 12 months. “Herauf J.A.” Herauf J.A. concur. “Richards C.J.S.” Richards C.J.S. concur. “Schwann J.A.” Schwann J.A.

HELD: The appeal from conviction was dismissed and sentence appeal allowed. The sentence was varied to 12 months of probation. The court found with respect to each issue that: 1) the presumption of competent trial representation had not been displaced. The trial lawyer’s decision not to cross-examine the complainant was a tactical one. She was very young and had difficulty expressing herself in the courtroom whereas she had given clear, coherent statements to the police shortly after the offence. The lawyer determined that it was not beneficial to the appellant’s position to highlight those statements by raising certain inconsistences between them and the complainant’s testimony; 2) the trial judge’s assessment of credibility was entitled to deference. He correctly identified R v W.(D.) as the guiding legal principle in the circumstances and his credibility findings were supportable on the evidence; and 3) the sentence was unfit because denunciation and deterrence are secondary factors in sentencing young offenders and are to be considered in a fashion consistent with the principle of “diminished moral blameworthiness” described in s. 3 the YCJA. The court acknowledged that this offence, committed against an 11-year-old and causing her serious psychological harm, might warrant a custodial sentence but for the appellant’s exemplary conduct since the offence and the almost four years that had elapsed between the offence in 2012 and his sentencing in 2016. Under s. 3(1)(b)(iv) and (v) of the YCJA, the delay in this case offended the concept of timely justice. To impose a custodial sentence on the appellant in this case would be contrary to the purposes of the YCJA as it would impede the appellant’s rehabilitation and reintegration into society. The court decided that a fit sentence in this case would be 12 months of probation.

b_2018skca27.txt

PCJ THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2007 SKCA 90 Date: 20070827 Between: Docket: 1376 The Canadian Federation of Students and The Canadian Federation of Students-Services Appellant (Added Respondent) and Robin Mowat Respondent (Applicant) and University of Saskatchewan Students’ Union Respondent (Respondent) Between: Docket: 1377 University of Saskatchewan Students’ Union Appellant (Respondent) and The Canadian Federation of Students and The Canadian Federation of Student Services Appellant (Added Respondent) and Robin Mowat Respondent (Applicant) Coram: Jackson, Richards Hunter JJ.A. Counsel: Todd J. Burke Andrew W. McKenna for The Canadian Federation of Students and The Canadian Federation of Students-Services Jennifer Pereira Reché J. McKeague for Robin Mowat Grant Scharfstein, Q.C. for the University of Saskatchewan Students’ Union Appeal: From: 2006 SKQB 462 (CanLII) Heard: June 11, 2007 Disposition: Dismissed Written Reasons: August 27, 2007 By: The Honourable Mr. Justice Richards In Concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Hunter Richards J.A. I. Introduction [1] These appeals concern a referendum on the question of whether the University of Saskatchewan Students’ Union should join the Canadian Federation of Students (the “Federation”). [2] The referendum was held in the fall of 2005. majority of students voted in favour of joining the Federation. The respondent Robin Mowat then applied to the Court of Queen’s Bench pursuant to The Non-profit Corporations Act, 1995, S.S. 1995, c. N-4.2 (“the Act”) and obtained an order declaring the referendum to be of no force or effect. [3] The Federation and the Students’ Union now seek to overturn that order. They argue Mr. Mowat had no standing to bring his application and that the Chambers judge made errors in his approach to the application of the relevant statutory provisions. [4] I conclude, for the reasons set out below, that the appeals must be dismissed. [5] The Students’ Union governs undergraduate student affairs at the University. It is incorporated pursuant to the Act. [6] The Federation is an incorporated entity. Among other things, it acts as an advocate for students across Canada. The Canadian Federation of Students-Services (“Federation-Services”) is also incorporated. It is allied with the Federation and operates to pool student resources in the provision of various services. [7] Membership in the Federation and Federation-Services is governed by their bylaws. Those bylaws provide that local student association, such as the Students’ Union, must first join the organizations as prospective member. It must then conduct referendum on the question of whether it should become full member. In this regard, the bylaws provide for the establishment of Referendum Oversight Committee consisting of two members appointed by the local student association and two members appointed by the Federation. The Oversight Committee establishes the rules governing the referendum. [8] In November of 2004, the Council of the Students’ Union passed motion pursuant to which the Students’ Union obtained prospective membership in the Federation and Federation-Services. [9] In the early months of 2005, representatives of the Federation and the Students’ Union discussed issues relating to the referendum. The Students’ Union had concerns about the interaction between the Federation’s bylaw requirements and its own procedures. Specifically, the Students’ Union had an Elections and Referenda Policy setting out rules with respect to campaigning, spending limits and so forth. The Policy did not contemplate the creation of an Oversight Committee. Rather, it provided that body called the Elections Board was responsible for conducting referenda. In addition, the Students’ Union constitution required referendum for the purpose of establishing dedicated student fee and membership in the Federation entailed an annual fee for each student. [10] The Students’ Union sought legal advice and, in September of 2005, attempted to reconcile its Elections and Referenda Policy with the procedures mandated by the bylaws of the Federation and Federation-Services. This was done through the amendment of the Policy to include new section aimed specifically at referenda concerning the Federation. It read as follows: 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 the USSU [Students’ Union] Representatives on the Oversight Committee and that the Elections Board must ratify the results of this referendum. [11] The referendum itself was hotly contested. Voting was held on October 4, and 6, 2005. Some 1,968 students voted in favour of joining the Federation and 1,584 against. [12] After the referendum, the Oversight Committee was presented with number of complaints from each side of the campaign. It looked into these matters and concluded as follows: 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. [13] The Elections Board received and considered the report of the Oversight Committee. It refused to ratify the referendum result because of flaws in the referendum process which, in its view, significantly affected the outcome of the vote. It recommended, instead, that another referendum be held with better settled and more widely disseminated ground rules. The key aspects of the Election Board’s report read as follows: 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. [Emphasis added in original] [14] The decision of the Elections Board then came before the Council of the Students’ Union. There was significant concern that legal proceedings would be initiated by the Federation and Federation-Services if the views of the Elections Board were not set aside. After considerable debate, the Council decided to override the decision of the Board and ratified the referendum result. [15] Mr. Mowat was in his final year as student at the University during the 2005-2006 academic year. He was actively engaged in the “no” side of the referendum and took exception to the conduct of the Federation, the Students’ Union and the Oversight Committee. In May of 2006, he applied to the Court of Queen’s Bench for an order declaring the referendum to be of no force or effect. decision granting that relief was rendered on October 13, 2006. A. Mr. Mowat’s Standing [16] Both the Students’ Union and the Federation argue that Mr. Mowat did not have standing to bring his application. In order to appreciate their concerns in this regard, it is necessary to examine the governing legislative provisions. [17] Section 225 of the Act sets out the right of complainant to seek the assistance of the courts in rectifying the effect of various kinds of corporate conduct. Its relevant features are set out below: 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: [18] The meaning of “complainant” for these purposes is found in s. 222 of the Act: 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 an application pursuant to this Division. [19] It was common ground before the Chambers judge that Mr. Mowat is former director of the Students’ Union. His status in that regard flows from the fact he was the President of the Students’ Union in 2003-2004. The Chambers judge, noting the aspect of the definition of complainant which refers to “a former director”, proceeded on the basis that Mr. Mowat had standing. [20] The Students’ Union and the Federation contend it is not enough that Mr. Mowat is former director. They variously argue that he must have been director at the time of the alleged oppressive conduct and that there must be some connection between the alleged oppressive conduct and his status as director. Their concerns are rooted in the fact that Mr. Mowat was President of the Students’ Union in the year before referendum. They also stress that he graduated from the University in May of 2006, prior to the argument of his application in the Court of Queen’s Bench. [21] It is not necessary to work through the merits of these arguments because, regardless of how they might play out, I am entirely satisfied that Mr. Mowat is a “proper person” to bring the application as per s. 222(d) of the Act . He attended the University from the fall of 2000 to the spring of 2006. He was managing editor of the campus newspaper and served term as member-at-large on the Student Union’s Student Affairs Board. He was member of the Senate for three years and, as noted, was President of the Students’ Union from 2003 to 2004. Mr. Mowat was very actively involved in the referendum campaign and a leading voice against joining the Federation. He was member of the Students’ Union both at the time of the referendum and at the time the actions about which he complains took place. [22] The Federation suggests that, notwithstanding all of this, Mr. Mowat should nonetheless be denied standing in the absence of evidence he represents meaningful portion of the current student body. This, think, is an overly restrictive view of the relevant provisions of the Act. The reality is that over 44% of the students who cast ballots in the referendum voted against joining the Federation. Mr. Mowat’s efforts to overturn the referendum result must surely appeal to many of those individuals who are still enrolled at the University and, in any event, doubt it is appropriate to reduce the issue of standing in this context to calculus based on bare numbers as suggested by the Federation. The Act gives the right to make an application to complainant, not to complainant who speaks for significant portion of members of corporation. [23] The Federation also submits that Mr. Mowat should be denied standing because he is no longer in position to personally benefit from any order court might make. find this argument, as well, to be too restrictive given the particular facts of this case. Mr. Mowat was deeply involved in the referendum campaign and the events leading up to the vote. The vote occurred on October 4, and 6, 2005 but the Oversight Committee report was not completed until the beginning of December. The Elections Board apparently reached its decision in respect of the referendum only in mid-February of 2006 and the Students’ Union Council did not make its decision to ratify the referendum result until March 30, 2006. Mr. Mowat then immediately took steps to deal with the situation. His solicitors wrote to the Students’ Union and the Federation as early as April 3, 2006 to advise of their instructions to initiate proceedings pursuant to the Act. All of this happened while Mr. Mowat was indisputably member of the Students’ Union. The fact that his application was ultimately argued a few months after he had convocated should not, in my view, defeat his right to bring his concerns forward. An individual’s status as student is inevitably temporary. I see no justice in denying Mr. Mowat’s standing only because the process for reviewing the referendum results played out so slowly that he was unable to bring the matter before a court prior to the date of his convocation. B. Mr. Mowat’s Entitlement to Relief [24] The Students’ Union and the Federation also contend that, even if he had standing, Mr. Mowat was not entitled to the relief granted by the Chambers judge. They say the judge took the wrong approach to s. 225 of the Act. In their view, he should have applied the case law dealing with controverted elections and, in that regard, focused on whether the alleged irregularities in the referendum process substantially affected the results of the vote. [25] In light of those submissions, it is useful to briefly summarize the reasoning of the Chambers judge. He began by referring to the controverted election cases and noted that, in light of the Elections Board report, the problems with the referendum must be taken to have been of kind that would have affected its outcome. In other words, the judge found that the line of analysis laid down in the election cases would lead to the referendum result being set aside. [26] However, the Chambers judge went on to say that he did not believe the controverted election jurisprudence was applicable to the problem before him. Rather, relying on Walton v. Saskatchewan Hockey Association (1998), 1998 CanLII 14039 (SK QB), 166 Sask. R. 32 (Q.B.) and related cases, he concluded that the proper test for relief was whether the Students’ Union had acted in “good faith and generally in accord with the concepts of natural justice”. He answered that question in the negative. The relevant aspects of his analysis are set out below: [60] 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? [61] 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? [62] In my view, no reasonable observer could conclude that the USC approached the post-vote process in good faith or in fashion that is in harmony with the broad rules of natural justice. When faced with result (rendered by 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. [27] agree with the Chambers judge that the controverted election cases are not applicable in the circumstances of this case. Section 225 of the Act creates and delimits statutory remedy for particular kinds of corporate conduct, i.e. conduct which is oppressive, unfairly prejudicial or unfairly disregards the interests of specified persons. Those provisions, like their counterparts in The Business Corporations Act, R.S.S. 1978, c. B-10, are remedial in nature and should be interpreted broadly. See, for example: Saskatchewan Housing Corp. v. Gabriel Housing Corp. (1998), 1998 CanLII 13945 (SK QB), 174 Sask. R. 200 (Q.B.) at paras. 68-69. [28] As result, it is not appropriate to transplant into the Act the case law developed in the context of elections for legislative office and to consider that body of law to be of controlling effect. Such an approach runs the risk of deflecting s. 225 from its true purpose and of unduly limiting the potential scope and flexibility of its application. At the same time, however, do accept that the courts should, in broad terms, be slow to intervene in voting-type disputes when the irregularities complained of are minor and of no demonstrable consequence. The Chambers judge properly recognized and appreciated this point. [29] All of that said, there is room to question the Chambers judge’s decision to build his analysis on the approach taken in cases like Walton v. Saskatchewan Hockey Association, supra. The authorities he referred to in this regard included Martineau v. Matsqui Institution Disciplinary Board, 1979 CanLII 184 (SCC), [1980] S.C.R. 602; Kanigan (Guardian ad Litem of) v. Castlegar Minor Hockey Assn. (1996), 1996 CanLII 1486 (BC SC), 141 D.L.R. (4th) 563 (B.C.S.C.); Beauchamp v. North Central Predators AAA Hockey Assn. (2004), 2004 CanLII 48698 (ON SC), 247 D.L.R. (4th) 745 (Ont. S.C.) and Miramichi Minor Hockey Club Inc. v. New Brunswick Amateur Hockey Association, [1999] N.B.J. No. 631 (N.B.Q.B.) (QL). None of those cases deals with applications brought under s. 225 of the Act or its equivalent in other jurisdictions. They are all cases decided in the context of judicial review applications grounded on factors such as denials of natural justice, the Charter, the Convention on the Rights of the Child and so forth. [30] In my view, it is important not to confuse the statutory concepts of oppression, unfairly prejudicial actions and actions which unfairly disregard interests, as set out in s. 225 of the Act, with the various aspects of the common law that typically form the basis of judicial review applications such as the one considered in the Walton case relied on by the Chambers judge. Notions such as the denial of procedural fairness may inform the meaning of s. 225 to some extent in specific contexts and, no doubt, particular action on the part of corporation might be both “oppressive”, for example, and involve procedures that in appropriate circumstance would amount to denial of fairness. However, the assessment of an application pursuant to s. 225 of the Act must be measured against the concepts of oppression, unfair prejudice and unfair disregard as provided in that section. Administrative law concepts should be imported into that analysis only with considerable care and only for the purpose of giving meaning to the statutory terms found in the section itself. [31] With that caution, turn to the specifics of this case. The Federation and the Students’ Union focus on various matters that were said by others to have been problems in the way the referendum was conducted. They take the position that none of those matters, either individually or collectively, affected the outcome of the referendum. The issues to which the Federation and the Students’ Union refer in this regard include (a) lack of formal declaration as to when the campaign was to begin; (b) failure to give proper notice of the wording of the referendum question; (c) the evolving nature of the referendum protocol and related failure to properly notify interested parties of changes in the protocol; (d) lack of clarity or agreement about spending limits and classroom campaigning; (e) failure to resolve the inconsistencies between the referendum requirements of the Federation and the Students’ Union prior to the beginning of the campaign; (f) involvement of Federation members of the Oversight Committee in the campaign; (g) the location of polling stations; (h) use of paper ballots rather than online voting; and (i) failure to refer complaints about the referendum results to an appeals committee. [32] For his part, Mr. Mowat emphasizes an additional point. It concerns the refusal of the Students’ Union to accept or abide by the decision of the Elections Board. Mr. Mowat says the role in the referendum given to the Board by virtue of the September 29, 2005 amendment to the Elections and Referenda Policy was conferred very deliberately and was the key to addressing wide spread concern on campus about the referendum and the loss of local control of the voting process. This, of course, is the issue that formed the basis of the Chambers judge’s decision. [33] The history of the amendment bears out Mr. Mowat’s characterization of it. The minutes of the September 22, 2005 Council meeting reveal considerable angst about the upcoming referendum and its legality. Among other things, the Students’ Union’s solicitor had warned that its constitution was not being followed in that there was no role for the Elections Board as contemplated by the Elections and Referenda Policy. In apparent response to this concern, the President of the Council proposed an amendment to the Policy that would have formally removed the authority of the Elections Board with respect to the referendum and vested that authority in the Oversight Committee. The vote on the motion was postponed for one week. [34] The matter returned to the agenda on September 29, 2005. The specific motion before the Council involved an amendment to the Policy to provide as follows: In Referenda to federate in the CFS [the Federation] an Oversight Committee shall have authority over the Referendum. The CRO [Chief Returning Officer] and ACRO [Assistant Chief Returning Officer] shall act as the USSU [Student Union] Representatives on the Oversight Committee. [35] Councillor Villeneuve proposed motion to add the words “and that the Elections Board must ratify the results of this referendum” to the end of the proposed amendment. After further debate, the Students’ Union President endorsed the amendment and offered his assessment of the situation by stating as follows: Councillor Villeneuve made very good amendment. He said that the Elections Board is going to have the final authority on this from the USSU end. All of us on both sides have expressed our explicit faith in the CRO and ACRO. They are the chair and the deputy chair of the Elections Board. It is completely for members of council and members from the student body that are appointed by the Appointments Board. That can be the house of sober second thought. Councillor Villeneuve’s amendment was then approved and the motion to amend the Elections and Referenda Policy was immediately passed. [36] In light of this history, agree with Mr. Mowat that the Council’s decision to reject the Election Board’s decision entitled him to relief under the Act. Having expressly amended the Elections and Referenda Policy for the specific purpose of giving the Elections Board “final authority” with respect to the referendum, it was unfair for the Council to then reverse field for purposes of endorsing the referendum result. That decision involved unfair prejudice to Mr. Mowat, and students of like mind, within the meaning of s. 225(1)(a) of the Act. It can also be taken to have involved an unfair disregard for their interests within the meaning of s. 225(1)(b) of the Act. [37] On this point, the Students’ Union contends that the Council had the power to disagree with the recommendations of one of its committees in the same way it is said that any corporate board can reject committee recommendation. This line of argument, in my view, is not convincing. The issue in case of this sort will rarely be whether the corporation had the power to act as it did. Rather, the question will be whether an otherwise valid exercise of corporate power amounts to oppression, unfair prejudice and so forth. That is the situation here. Mr. Mowat does not challenge the actions of the Students’ Union on the basis that it lacked the root authority to do as it did. He argues that its use of power was inappropriate and gives rise to remedies under the Act. That issue, not the simple vires of the Council’s decision, is the question before the Court. [38] It is also argued that the Chambers judge erred in finding that the Students’ Union Council had “imposed its own preordained outcome” by endorsing the referendum result. agree with this submission. The record does not support the conclusion that the Council’s decision was “preordained” in the sense of being inevitable. It was taken only after significant debate featuring all sides of the issue. However, that does not affect the bottom line of my view of this case nor, expect, was the notion of the Council’s decision being preordained essential to the conclusion of the Chambers judge. The critical point is that the Council abandoned a formal process which had been put in place specifically to address the very significant concerns raised by Mr. Mowat and others about the referendum. Whether that turn of events was somehow inevitable is not the real issue. Rather, the essence of this case is the unfairness and prejudice the Council’s decision involved for those who had opposed joining the Federation. [39] In the result, therefore, find it unnecessary to look more closely at the specific problems that arose in relation to the referendum process. The decision of the Students’ Union to override the decision of the Elections Board was itself something that warranted the granting of relief pursuant to s. 225 of the Act. [40] In the result, conclude that Mr. Mowat had standing to bring his application and that the relief awarded by the Chambers judge was appropriate. The appeals of the Federation and the Students’ Union are dismissed with costs. DATED at the City of Regina, in the Province of Saskatchewan, this 27th day of August, A.D. 2007. “RICHARDS J.A.” RICHARDS J.A. concur “JACKSON J.A.” JACKSON J.A. concur “HUNTER J.A. HUNTER J.A.

These appeals concern a referendum on the question of whether the University of Saskatchewan Student's Union should join the Canadian Federation of Students (the Federation). The referendum was held in the fall of 2005. A majority of the students voted in favour of joining the Federation. The respondent Robin Mowat then applied to the Court of Queen's Bench pursuant to The Non-profit Corporations Act (the Act) and obtained an order declaring the referendum to be of no force or effect. The Federation and the Student's Union now seek to overturn that order. They argue that Mowat had no standing to bring his application and that the Chambers judge erred in his application of the relevant statutory provisions. HELD: The appeals must be dismissed. 1) The respondent is a 'proper person' to bring the application pursuant s. 222(d) of the Act. He was attending the University and very actively involved on campus and the referendum campaign. Over 44% of the students voted against joining the Federation. The Act gives the right to make an application to a complainant, not to a complainant who speaks for a significant portion of the members of a corporation. The fact that the respondent's application was argued a few months after the respondent had convocated should not defeat his right to bring his concerns forward. An individual's status as a student is inevitably temporary. There is no justice in denying the respondent's standing only because the process for reviewing the referendum results played out so slowly that he was unable to bring the matter before a court prior to the date of his convocation. 2) The Controverted election cases are not applicable in the circumstances of this case. Section 225 of the Act creates and delimits a statutory remedy for particular kinds of corporate conduct. The assessment of an application pursuant to s. 225 of the Act must be measured against the concepts of oppression, unfair prejudice and unfair disregard as provided in that section. Administrative law concepts should be imported into that analysis only with considerable care and only for the purpose of giving meaning to the statutory terms found in the section itself. 3) The critical point is that the Council abandoned a formal process which had been put in place specifically to address the very significant concerns raised by the respondent and other about the referendum. Whether that turn of events was somehow inevitable is not the real issue. Rather, the essence of this case is the unfairness and prejudice the Council's decision involved for those who had opposed joining the Federation. It is unnecessary to look more closely at the specific problems that arose in relation to the referendum process. The decision of the Student's Union to override the decision of the Elections Board was itself something that warranted the granting of relief pursuant to s. 225 of the Act.

5_2007skca90.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2011 SKPC 108 Date: September 8, 2011 Information: 46743807 Location: Saskatoon Between: Her Majesty the Queen Appearing: Tom Macnab For the Crown Tanis Talbot For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of name or other information that would identify someone as either young person being dealt with under the Act, or as child or young person who is victim or witness in relation to an offence alleged under the Act. JUDGMENT P.S. KOLENICK, [1] The accused is charged that he did, on or about November 29, 2010, at Saskatoon, commit common assault against the complainant contrary to s. 266 of the Criminal Code. The issue which has arisen is whether the evidence of the Crown is sufficiently credible to prove beyond a reasonable doubt that the only physical contact he had on the complainant was for the purpose of defending himself from the alleged aggression of the complainant. Related to that was whether, on the evidence the Crown was able to prove non-consent beyond a reasonable doubt. Regardless, the accused bears no onus whatsoever in these proceedings. [2] For roughly two months prior to this alleged matter, the complainant, age 17, had lived in blended family with her father as well as, the accused and his mother. Their parents also had baby between them, 10 months old at the time. disagreement arose between the accused and the female complainant when he had accidentally allowed the baby to slip from his grasp while removing him from the Jolly Jumper. The child had struck the floor, but suffered no injury, and was quickly comforted. The actions of the accused had been unintentional with no harm to the baby. Despite that, it led to sharp verbal exchange, as the circumstances between the parties deteriorated, leading to more. EVIDENCE FOR THE CROWN Evidence of the Complainant [3] The complainant confirmed that she had asked the accused to take the child out of the Jolly Jumper. When the infant ended up on the floor, having slipped from the accused’s grasp, she told the accused he had dropped the baby. That led to an exchange between them, when she had said to the accused he had dropped the child, to which the accused replied words like “no didn’t fucking drop him”. When she said again that he had, once more he said “no didn’t fucking drop him”. The argument started. She went upstairs and entered one of the bedrooms as the dispute continued. As she tried to close the bedroom door, he forced his way into the room. He pushed her down on the floor, with both hands on her chest, causing her to strike her head on either the dresser or the bed and suffering slight headache. The accused departed from the room. In due course, the complainant called 9-1-1, and the police attended at the scene. There had been nobody else but the complainant and the accused in the bedroom at the time. [4] Initially the accused had been okay in his demeanour, but became more agitated when he believed the complainant was accusing him of intentionally dropping the baby. She was scared by the accused’s actions, ran to the bedroom and told him to stay away. He had also made some threatening comments to the complainant’s father. The whole incident was over in less than five minutes. [5] In cross-examination the complainant advised that there had been tension, arguments and yelling between them on more than one occasion prior to this alleged matter. This time she had tried to stay calm, because the baby was on the floor, even if it had been accidental. Once they started yelling at each other things happened very quickly. [6] She claimed as well that the accused had pushed her causing the strike to her head and disputed taking swing at him. On the evidence she was 5’5” and the accused 6’2”. On that basis, she denied any intention to be physically aggressive with him because of the size difference. The Complainant’s Father [7] The complainant’s father had observed the verbal exchange between the accused and his daughter, when the child had fallen from the accused’s grasp as he was removed from the Jolly Jumper. While he comforted the child, the dispute between the accused and his daughter continued. At one point, the accused started to go downstairs to the area of his own bedroom, to cool off, and the complainant went upstairs to the bedroom. However, the argument continued between the accused and the complainant. The accused’s mother was in the vicinity as well. [8] Suddenly, the accused ran from the lower landing to the bedroom, where his daughter was headed. The accused’s mother tried to grab him as he ran by, to no avail. Both the accused and his daughter ended up in the bedroom. He heard thump, but could not see what had happened because there was nobody else in the vicinity other than those two. The complainant told the accused to get away from her, as did he, as the accused made his way to the bedroom. [9] The accused’s mother had attended to console the complainant, because she was hysterical. That, however, did not go well, so he suggested that she attend to the accused, while he looked after the complainant. As result of his comments made to the accused’s mother, the accused had said words to the effect “don’t talk to my mom you bitch. I’ll fucking stab you.” [10] In cross-examination he confirmed that both the accused and complainant were engaged in an emotional situation. They were both yelling and swearing. Neither one would back down. However he denied that the complainant had walked toward the accused. Rather, the accused had entered the bedroom where the complainant was located and he heard thump. He denied also that he was angry by what the accused had allegedly done, but was only in defensive mode for the complainant. EVIDENCE FOR THE DEFENCE The Accused [11] The accused claimed that, while removing the baby from the Jolly Jumper, he had jumped, slipped out of his hands and was crying. Initially the complainant had said words like “you fucking dropped him”. He explained the child had slipped, initially speaking in normal tone. Soon the dispute had escalated and they were both shouting at each other, so the accused went toward his bedroom downstairs in order to cool off. In the meantime, the accused’s mother was speaking in normal tone, attempting to find out what had happened. An argument between the complainant and the accused’s mother ensued, with the complainant calling her bitch. [12] The complainant walked upstairs toward the bedroom and everybody was yelling and swearing at each other. The complainant went into the bedroom and shut the door. The accused went there and opened it. When the door had been opened, the complainant struck the accused in the shoulder. As result of that blow, the accused raised his arm to push back the complainant and not get hit, in an act of self-defence. That caused the complainant to step back and he had only pushed her with one hand. He told her not to speak about his mom in that nature, and departed from the bedroom. He also could not recall yelling threats at the complainant’s father as alleged. [13] In cross-examination the accused confirmed he had walked fast because he was angry with the complainant. She had closed the door and the accused had opened it. He did not hear the complainant say that he should stay away from her, nor did he push the complainant first. Rather the complainant had struck the accused first in the shoulder. Only after that did he push back, in order to defend himself. He also disputed making any nature of threats against the complainant’s father even though he was angry for the comments made by him to the accused’s mother. The Accused’s Mother [14] At the material time, she had requested the accused remove the baby from the Jolly Jumper. dispute ensued between the accused and the complainant when the baby fell or slipped from the accused’s grasp. [15] In the course of the argument, the complainant went to the upstairs bedroom and entered into it. In the meantime the accused had gone from the living room to the bedroom door. The complainant went to slam it, but the accused pushed it open. She was not able to see what happened in the bedroom, but heard the complainant screaming. She went to the complainant and tried to console her but the complainant pushed her away. Likewise she had sent the accused to his bedroom. She was also aware that the accused had made some nature of comment that he would stab or hit the complainant’s father for him calling her bitch. Regardless, the whole scenario was very stressful. [16] In cross-examination, she had confirmed that the accused may have been upset because of being accused of dropping the baby. As well, the complainant had attempted to slam the bedroom door in order to ensure to exclude the accused therefrom even though he was upset and went to the bedroom. The incident had only taken couple of minutes, and then things calmed down. ANALYSIS Is the evidence for the Crown sufficiently credible to prove beyond reasonable doubt that the complainant had not consented to the alleged aggression of the accused, or that the accused had not acted in self-defence? [17] The constituent elements for this alleged matter are set forth in s. 265(1)(a) of the Criminal Code, which provides as follows: 265. (1) person commits an assault when (a) without the consent of another person, he applies force intentionally to that other person, directly or indirectly; [18] As noted, in general the burden is on the Crown to prove the constituent elements of the offence beyond reasonable doubt with credible evidence, and the accused is presumed innocent until proven guilty. In assessing 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 accept, you are convinced beyond reasonable doubt by that evidence of the guilt of the accused. [19] 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. Therefore, credibility of the material witnesses needs to be considered, in that context. [20] The complainant had claimed in her evidence that, as she tried to close the door to the bedroom, the accused had forced his way in, pushing her down on the floor with both hands on her chest, she striking her head. She disputed any suggestion of having taken swing at the accused, particularly because of the size difference. [21] Her father advised that he had heard thump from the bedroom when the two of them were in there alone. He had not been in the bedroom at the time. [22] In his testimony, the accused claimed that after he had opened the door to the bedroom, the complainant had struck him with one blow in the shoulder. In order to defend himself he had pushed the complainant with one hand, which caused her to step back. The accused’s mother as well was not able to see what had happened in the bedroom. When the complainant had gone to slam the door, the accused had pushed it open. She had heard the complainant screaming. The accused had also made some nature of comment that he would stab or hit the complainant’s father, because he had called her, the accused’s mother, bitch. [23] Regardless, it is apparent that there was great deal of animosity and bad blood which made it difficult for the witnesses to recall and relate in reliable way what may have happened on the spur of the moment between the parties. As well, there were no other witnesses in the bedroom, except the two of them, at the material time. [24] In any event, after having given careful consideration to all of the testimony, there is nothing from any of the witnesses who testified which undermines credibility to the extent that the evidence should be regarded as having less value, sufficient to support the conviction of the accused. As such, perhaps it is possible that the complainant had initiated the physical aggression by hitting the accused on the shoulder in frustration at how matters had unfolded to which he reacted with blow. None of that scenario supports the Crown being able to prove that the complainant had not consented to the application of force which had allegedly occurred, and the accused must receive the benefit of the doubt in that regard. [25] As such, applying the principles in McKenzie, supra, the Court does not know who to believe, and he is not guilty of the offence of common assault contrary to s. 266 of the Criminal Code. P.S. Kolenick,

The accused was charged with committing a common assault against his step-sister being the complainant. The question was whether the Crown's evidence was sufficiently credible to prove beyond a reasonable doubt that the only physical contact he had on the complainant was for the purpose of defending himself from the alleged aggression of the complainant and whether the Crown was able to prove non-consent beyond a reasonable doubt. HELD: The Court did not know whom to believe and the accused was acquitted.

d_2011skpc108.txt

CANADA PROVINCE OF NOVA SCOTIA COURT NO. 24155 ESTATE NO. 51-074988 IN THE SUPREME COURT OF NOVA SCOTIA IN BANKRUPTCY IN THE MATTER OF THE BANKRUPTCY OF CHRISTOPHER JAMES WHITE HEARD BEFORE: Tim Hill, Registrar in Bankruptcy DATE HEARD: November 19, 2001 ORAL DECISION: November 19, 2001 WRITTEN DECISION: January 7, 2002 COUNSEL: Mark Rosen representing the Trustee, PricewaterhouseCoopers Darrin Ulley representing the Superintendent of Bankruptcy This is an application to tax a trustee’s account. The debtor made consumer proposal which was accepted by his creditors and PricewaterhouseCoopers (“PWC”) was appointed Trustee under the proposal. At some point during the proposal Mr. White defaulted. The Act makes it clear where the payments on consumer proposal are to be made monthly (as was the case here), and where the debt is in default to the extent of three months of payments the proposal is deemed to be annulled. There is no choice in this and there is no discretion in either the trustee or the court to relieve against the annulment: Re Schrader, (1999) 13 C.B.R. 4th 256 (N.S.S.C.) believe that PWC has reported that somewhere around April or May the debtor was three months behind in his payments. The evidence as to the exact date was unclear, but PWC can determine the exact date applying the principle expounded upon here. The Superintendent objects on this taxation indicating that this court should review the trustee’s fee given that the trustee accepted payments after the deemed annulment. find that PWC is entitled to fee, but that fee can only be based on those amounts received by PWC under the provisions of the consumer proposal. Those amounts received after the consumer proposal was deemed to be annulled are not be subject to a trustee’s fee. What should PWC do with the monies received from the debtor after the default? It seems to me that the debtor did send those monies to PWC with the intention those monies be distributed to the debtor’s creditors. To that extent the trustee acts as the debtor’s agent. PWC as agent has an obligation to disburse those monies to the creditors as was the intention of the debtor. In summary, the fee of PWC should only be based on monies received from the debtor while the proposal was extant. The fee is taxed and allowed in the appropriate amount, with leave to reapply to me to set specific number if PWC and he Superintendent cannot agree what that should be. I also opine that the excess monies should be distributed to the creditor’s, who should be advised that their original debts remain receivable. Dated at Halifax, Nova Scotia this 7th day of January 2002. Registrar in Bankruptcy

The Trustee received funds after a debtor defaulted on a consumer proposal. The Trustee sought to have its fees taxed.,fees taxed based on the funds received by the Trustee prior to default. The default is deemed to be an annulment of the proposal and all funds received post-default must be distributed to the creditors.

2002canlii25275.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2009 SKPC 31 Date: February 27, 2009 Information: 37262946 Location: Prince Albert Between: Her Majesty the Queen and Chisum Log Homes and Lumber Ltd., Corporation 309621 And Garry Varga Appearing: Inez Cardinal, Q.C. For the Crown Eric Lanoie For the Accused JUDGMENT H. M. HARRADENCE, I. INTRODUCTION [1] The defendant, Chisum Log Homes and Lumber Ltd. (referred to as “Chisum”) and Garry Varga (referred to as “Varga”) are charged as follows:Information 37262946: Count 1: between the 7th day of August, 2007 and the 8th day of September, 2007, did operate a processing facility without a licence, contrary to section 18.1(1) of The Forest Resources Management Act, F-19.1. [2] Varga is the President and sole Director of Chisum. Chisum assembles log home packages in the Weyakwin district north of Prince Albert. These packages are sold to customers across Canada and around the world. Chisum buys wood from area operators to be used in its packages. One of these operators is Wood Products (1985) Ltd. (referred to as “L M”). Wood Products, through its contractor, Logging (referred to as “P E”), harvest wood from the forest in and around Glaslyn. They sell this wood to pulp mills, saw mills and other customers such as Chisum. Steps are taken by and to identify and sort to ensure that the logs provided to Chisum are satisfactory for their purpose. and have both Forest Management Agreement and Forest Product Processing Facility Licence. [3] Specifically in August to September, 2007, delivered logs to Chisum. Chisum took additional steps to prepare these logs for inclusion in the log home packages which it sold. Chisum does not have Forest Product Processing Facility Licence. The issue in this case is whether the Crown has shown that Chisum requires such a licence. II. THE EVIDENCE [4] The majority of evidence was tendered by agreement. The Agreed Statement of Facts, filed as P-1, reads in its entirety as follows: 1. Chisum Log Homes and Lumber Ltd. (hereinafter “Chisum Log”) is registered business corporation in Saskatchewan, being entity number 309621, whose Director is Garry Varga. The nature of the business as noted in the Corporate Registry is “logging, manufacturing building products”. copy of the Corporate Registry is attached. 2. Chisum Log operates facility at or near Weyakwin, Saskatchewan that produces log home packages for sale to Canadian and international customers. 3. Chisum Log purchases cut to length aspen from Wood Products (1985) Ltd. (hereinafter M) in Glaslyn, Saskatchewan. Wood Products holds valid licence, issued by Saskatchewan Ministry of Environment, to harvest forest products, namely trees. hires contractor, Logging (hereinafter E), to fell, de-limb and deliver the trees to the yard. cuts down aspen trees, and cuts off the top of the tree to 10 inch top. The top part of the tree is sold to for pulp to pulp mill in Meadow Lake. The rest of the tree is limbed and checked for “trueness” to ensure straight stock. These cut to length aspen logs, with the bark remaining on, are then loaded onto semi-truck and hauled to M’s yard. Although has Chisum Log in mind when they harvest the tree, and in some cases the tree is specifically cut for sale to Chisum Log, the cut to length logs can be sold to another log home builder or saw mill as the dimensions at this stage are suited to both. 4. Once the logs are delivered to M, nothing further is done to them. The length of the logs vary in size and can be anywhere from approximately 20 feet to 40 feet with diameters of 10 inches at the top to over 20” at the stump end. Chisum Log cannot use logs less than feet in length or less than 10 inches. 5. Chisum Log purchases these aspen logs from in round form: de-limbed with the bark on. Chisum Log, through the direction of Garry Varga, cuts these logs to various sizes. Each log is then put through process whereby the log is debarked, turned down to uniform diameter (usually inches) on large lathe machine. double tongue and groove pattern is cut into the bottom (the tongue) and the top (the groove) of each log. Saddle notches are then cut into each end of the log. The finished logs are marked for ease of home construction, packaged, sold to customers in Canada and internationally. 6. Between August 7, 2007 and September 8, 2007, Chisum Log under the direction of Garry Varga received five loads of aspen logs from and using his facility at Weyakwin, Saskatchewan, turned these logs into chisum logs for resale to the public. These loads were delivered on August 27, 30, 21 and September and 5, 2007 for total weight of approximately 133,130 kg which Chisum Log paid $6656.60 plus GST of $399.39 for total of $7055.89. This is approximately $50 per tonne. 7. Chisum Log sells directly to the consumer, with the price of the log home package varying depending upon the size of the package chosen. For example, the Weyakwin package, comprised of 8” logs, with floor plan of 672 sq. ft sells for $19,901.04. The Athabascan package, comprised of 10” logs, with floor plan of 1421 sq. ft sells for $78,530.73; or the same floor plan with inch logs sells for $46,946.59. These packages are logs only and ready for assembly, with the roof and floor extra. 8. Neither Chisum Log Homes and Lumber Ltd. nor Garry Varga holds Forest Product Processing Facility Licence issued by the Saskatchewan Ministry of Environment pursuant to The Forest Resources Management Act, c. F-19.1. [5] In addition to P-1, the Crown called two witnesses. Trevor Davies is the owner of Wood Products. buys and sells forest products. is operated by the same family. The wood is harvested from Provincial Crown lands. is the harvester. Mr. Davies knows that the limbs are taken off in the forest, but the bark is left on the logs. He also knows that delivered logs to Chisum. The logs delivered to Chisum would be cut as logs used for log homes and are not true tree length. Mr. Davies is responsible for invoicing, and he indicated in cross-examination that logs sold for log homes sell for approximately double the price of logs sold to the Meadow Lake Pulp Mill. [6] Chris Brown is forester with the Ministry of Environment. He testified for the Crown. He described chisum log as specific manufactured product. In order to create chisum log the forest product must be debarked and cut to length. Chisum logs must also have the required tongue and groove and saddle notches cut into the logs in order that they will fit together in the assembly process. In the opinion of Mr. Brown, the creation of chisum log is processing and must require Forest Product Processing Facility Licence. [7] The defence called two witnesses. Brent Delainey has been logger for 25 years. He works for harvesting timber, but is also part of the family ownership group that has an ownership interest in M. Mr. Delainey testified that in the forest there are certain steps taken to sort the logs which will be used for log homes. In addition to delimbing them they must be straight with ten inch top and have no rot. He says he does have homemade caliper to take measurements to ensure the logs are suitable for use in log homes. He agreed that all of these steps are taken in the field and very few, if any, steps would be taken at the processing facility except the occasional trimming of log. [8] Dean Millard operates Turtle Lake Wood Products in the Glaslyn area. In 2007 this operation possessed both Forest Product Permit, D-1 and Forest Product Processing Facility Licence, D-2. He says that he has sold logs to Chisum and he is of the opinion that logs sold to Chisum were processed because they were tailored to the specifications of the customer. III. STATUTORY PROVISIONS [9] Section 18.1(1) of The Forest Resources Management Act, F-19.1 reads as follows: No person shall operate processing facility without licence. [10] This legislation also defines “processing facility”, “manufacture” and “harvest” in s. as follows: (m) “harvest” means to cut, pick, gather, collect, accumulate, alter, disturb or remove forest products by any means and includes the grazing of livestock; (r) “manufacture” means any step taken to prepare forest product for market, and includes the sawing, peeling, chipping, debarking, preserving, cleaning, drying, extracting and packaging of forest products, but does not include harvesting; (w) “processing facility” means pulp mill, sawmill, plywood mill, fibre or strand board mill, post plant or any other facility, fixed or mobile, designed for manufacturing forest products and includes slasher, chipper, debarker, fuelwood processor or any other mechanized equipment, fixed or mobile or any component of the equipment, designed for manufacturing forest products; IV. POSITION OF THE PARTIES a) Crown Position [11] The Crown says that in order to create chisum log certain steps must be taken as indicated by Mr. Brown. [12] The Crown also points to paragraph of P-1 the Agreed Statement of Facts. This process is clearly, in the Crown’s view, processing as defined in the legislation and requires Processing Facility Licence. [13] The Crown indicates in their written brief that the interpretation suggested by the defendants would create an absurdity[1]: The defendants suggest that once forest product is harvested and the dues and fees paid, they are no longer forest products and are thus no longer governed by provincial legislation. To assign the interpretation put forward by the defendants does not avoid absurdity or inconsistency in the legislation, but rather creates absurdity and inconsistency. This would render meaningless many provisions of the FMPA, such as the requirement for licence to operate processing facility of any description, such as sawmill. b) Defence Position [14] The defence takes the position that once the logs reach Chisum, given the broad definitions contained in the legislation, they have already been processed, and to require Chisum to have processing licence is unnecessary. Further, this conclusion would lead to every value added process involving forest products requiring Processing Facility Licence. Mr. Lanoie, in oral argument submitted that has processed or manufactured the wood[2]: The manufacturing the manufacturing step is, it was selected specifically, there are steps taken outside of the harvesting process specifically done in order to produce this item for the market. They separated them out, they hand-inspected them. They trimmed them to 10 inch top. They had to ensure that they were straight. They had to cut any butt-rot off. Cutting and cutting is part of is part of the definition of sawing. [15] The defence also says that Processing Facility Licence is required for one of the steps in manufacturing wood product, but not each and every step[3]: But it doesn’t say that every step. It says any step and that any step has already been taken, Your Honour. That step has already been taken and that’s our position is that our understanding is that the step for manufacturing has already taken place. Any step has taken place. It has been cut, its been selected, its been cleaned specifically for this market. [16] The defence maintains in its brief that the Crown’s interpretation would create an absurdity[4]: Importantly, the Crown’s position creates an absurdity in that: one, it would require any manufacturer, at any point in the market chain, to obtain processing licence for any processing of product that had as its point of origin, Crown Forest Land; and two, it creates two tiered system of regulation of processing facilities, those that process product originating from Crown Forest Land and those that only process product originating from private land. V. ANALYSIS [17] The definition of “manufacture” in The Forest Resources Management Act, F-19.1 is extremely broad as it says, “means any step taken”. Given this definition it is not difficult to find based on the evidence presented that the steps taken by Brian Delainey of P & E Logging, which included cutting the logs were specifically taken to prepare them for the log home market. These steps may not be significant but I am satisfied that the process utilized by P & E is more than simply harvesting as it is defined in the legislation. am assisted in reaching this conclusion by the Saskatchewan Court of Queen’s Bench decision in R. v. Provincial Forest Products[5] referred to in the written brief of the defence. [18] This is not the end of the matter. I am also satisfied that Chisum took steps to manufacture the forest product for the log home market. I find that paragraph 5 of P-1 clearly establishes the steps taken by Chisum, including debarking, were steps taken in the manufacturing of a forest product for market. [19] As indicated, the definition of processing facility is broad and applies to any mill, plant, or other facility designed for manufacturing forest products. It specifically does not say only one facility or the first facility but rather any facility. [20] Given this wide definition it is my view that many facilities, including retail lumberyard could be captured within this definition. My understanding based on the argument in this case, is that it is not the policy of the Crown to require this broad application of the legislation. The issue at this stage is whether these potential negative consequences of the legislation are relevant. [21] pause at this stage, to note that this case does not involve retail lumber yard, but rather process undertaken by Chisum which it is agreed is quite extensive. [22] Ruth Sullivan in the text Driedger on the Construction of Statutes[6], summarizes the modern absurdity rule as follows: (1) It is presumed that legislation is not intended to produce absurd consequences. (2) Absurdity is not limited to logical contradictions and internal incoherence; it includes violations of justice, reasonableness, common sense and other public standards. Also, absurdity is not limited to what is shocking or unthinkable; it may include any consequences that are judged to be undesirable because they contradict values or principles that are considered important by the courts. (3) Where the words of legislative text allow for more than one interpretation, avoiding absurd consequences is good reason to prefer one interpretation over the other. Even where the words are clear, the ordinary meaning may be rejected if it would lead to an absurdity. (4) The more compelling the reasons for avoiding an absurdity, the greater the departure from ordinary meaning that may be tolerated. However, the interpretation that is adopted should be plausible. [23] In considering statute it is appropriate to refer to the purpose of the statute and if necessary interpret the statute to conform to its purpose[7]: In the conventional rhetoric of statutory interpretation, purposive interpretation is often associated with breadth, liberality, fullness, expansiveness and the like. In practice, however, legislative purpose is as likely to be invoked to justify narrow or restrictive interpretation as broad or expansive one. This is because such modern legislation is drafted in broad and abstract terms. Rules are stated in general language and the facts to which they apply are described in terms of general categories, classes and types. Qualification and exceptions are kept to minimum. This results in style that is often vague and tends to be over-rather than under-inclusive. Where the ordinary meaning of legislation is too broad, the effect of purposive analysis is to narrow its scope by excluding applications within the ordinary meaning that are not rationally related to the purpose. [24] As indicated by the Crown the purpose of The Forest Resources Management Act, F-19.1 is stated in s. 3: The purpose of this Act is to promote the sustainable use of forest land for the benefit of current and future generations by balancing the need for economic, social and cultural opportunities with the need to maintain and enhance the health of forest land. [25] Given this purpose it is appropriate that the requirement for Processing Facility Licence be restricted so that it does not apply to every entity that manufactures forest product. However, can not say that it is reasonable to restrict the legislation to the point that only one processing facility is required to be licenced for the manufacture of forest product. This must be factual determination made on case by case basis. [26] In this case, given the evidence, it is my view that Chisum was involved in the manufacture of forest product for the log home industry. It is further my view that the process detailed in P-1 encompassed the substantial conversion of the forest product into logs to be used in the log home industry. The process is not an insignificant process, nor is it process which is removed from the sustainable use of forest lands and the need to maintain and enhance the health of forest lands. I have therefore concluded that Chisum was required to have a Processing Facility Licence. VI. LIABILITY OF GARRY VARGA [27] Section 81 of The Forest Resources Management Act, F-19.1 reads as follows: Any officer, director or agent of corporation who directed, authorized or participated in an act or omission by corporation that would constitute an offence by that corporation is guilty of that offence, whether or not the corporation has been prosecuted or convicted. [28] Paragraphs and of the Agreed Statement of Facts refer to Chisum acting under the direction of Garry Varga. Also as part of the Agreed Statement of Facts the Corporate Registry shows Garry Varga as the President of Chisum. CONCLUSION [29] I therefore find Chisum Log Homes and Lumber Ltd. and Garry Varga guilty of violating s. 18.1(1) of The Forest Resources Management Act, F-19.1. [30] am very thankful for the extensive written material provided by counsel as well as their able oral submissions. [31] Dated at the City of Prince Albert, in the Province of Saskatchewan this 27th day of February, 2009. H. M. Harradence, [1] Brief of Law on Behalf of the Crown, dated September 24, 2008, paragraph 31. [2] Transcript of Oral Argument by Counsel, September 30, 2008, page 10, lines to 14. [3] Ibid, page 9, lines to 10. [4] Brief on Behalf of the Defendant, Garry Varga, carrying on business as Chisum Log Homes Lumber Ltd., paragraph 30. [5] See R. v. Provincial Forest Products, 2000 SKQB 371 (CanLII). [6] Driedger on the Construction of Statutes, Ruth Sullivan, Third Edition, Butterworths Canada Ltd. 1994, Toronto, and Vancouver, pages 85 and 86. [7] Ibid, page 69.

The accused, Chisum Log Homes and its sole director Gary Varga, are charged with operating a processing facility without a licence contrary to s. 18.1(1) of The Forest Resources Management Act. The accused corporation assembles log home packages. The packages are sold to customers across Canada. The accused corporation buys wood from area operators such as L&M to be used in its packages. L&M through its contractor P&E, harvest wood from the forest and sell the wood to pulp mills, saw mills and other customers such as the accused. These area operators and their contractors have Forest Management Agreements and Forest Product Processing Facility Licences. In August and September 2007, the area operator L&M delivered logs to the accused. The accused took additional steps to prepare the logs for inclusion in their log home packages which they sold. The accused does not have a Forest Product Processing Facility Licence. The issue in this case is whether the Crown has shown that the accused requires such a licence. HELD: 1) The definition of 'manufacture' in the Act is extremely broad as it says, 'means any step taken'. Given this definition is not difficult to find based on the evidence presented that the steps taken by the contractor in cutting the logs is more than simply harvesting as it is defined in the legislation. See R. v. Provincial Forest Products, 2000 SKQB 371. 2) The Court is satisfied that the accused corporation, Chisum, took steps to manufacture the forest product for the log home market. Steps such as debarking were steps taken in the manufacture of a forest product for market. 3) Given the wide definition it is the Court's view that many facilities, including a retail lumberyard, could be captured within the definition. Given the stated purpose of the Act, it is appropriate that the requirement for a Processing Facility Licence be restricted so that it does not apply to every entity that manufactures a forest product. 4) The processes Chisum is involved in encompass the substantial conversion of the forest product into logs to be used in the log home industry. The process is not insignificant, nor is it a process which is removed from the sustainable use of forest lands and the need to maintain and enhance the health of forest lands. The Court concludes that Chisum was required to have a Processing Facility Licence. 5) Pursuant to s. 81 of the Act, Gary Varga, as President of Chisum, is also guilty of violating s. 18.1 of the Act.

c_2009skpc31.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 21 Date: 2013-03-01 Between: Docket: CACV1973 Dr. Stan Rubin and Glenn Ross, Sam Nowaselski, and Canadian Union of Public Employees, Local 1975 Respondents Coram: Klebuc C.J.S., Lane Jackson JJ.A. Counsel: Catherine Sloan and Paul Clemens for the appellant Andrew Mason for Glenn Ross, Sam Nowaselski and Canadian Union of Public Employees Local 1975 Appeal: From: 2010 SKQB 249 (CanLII) Heard: September 14, 2012 Disposition: Appeal allowed Cross-appeal dismissed Written Reasons: March 1, 2013 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Lane Jackson J.A. I. Introduction [1] This appeal concerns the extent to which the principle of qualified privilege applies to defamatory statements made by a union regarding a member of the employer’s management. The trial judge held that the principle of qualified privilege protected the union and its representatives when the latter republished a grievance defaming a member of management by falsely accusing him of having participated in the harassment of an employee. He fixed a provisional award of damages of $25,000 (see: 2010 SKQB 249 (CanLII), [2010] 12 W.W.R. 271). [2] I have concluded that the trial judge erred by finding the defamatory statements are protected by qualified privilege. I would allow the appeal and fix general damages at $100,000. [3] The parties to this appeal are Dr. Stan Rubin on the one side and the Canadian Union of Public Employees, Mr. Glenn Ross, and Mr. Sam Nowaselski on the other. Dr. Rubin is the former Director of the Veterinary Teaching Hospital at the Western College of Veterinary Medicine, University of Saskatchewan. He is the appellant in this appeal and the respondent by virtue of cross-appeal. will refer to him by his name. [4] At all relevant times, Mr. Ross was the President of the Union, and Mr. Nowaselski was the senior grievance officer for the Union. Mr. Ross and Mr. Nowaselski played integral roles in preparing and publishing the defamatory statements in question on this appeal. The Union, Mr. Ross and Mr. Nowaselski are the respondents to Dr. Rubin’s appeal and appellants by way of cross-appeal. For ease of reference, will refer to the Union and Messrs. Ross and Nowaselski collectively as the Respondents. [5] The defamatory statements arose in this context. The Veterinary Teaching Hospital, which will refer to as the Hospital, encompasses approximately 600 faculty, staff and students and serves approximately 12,000 members of the public each year, as well as functioning as teaching facility. Dr. Rubin became the Director in 2002. As the Director of the Hospital, Dr. Rubin was responsible for all major administrative and fiscal decision-making. [6] About 100 employees of the Hospital are Union members. One Union member and an employee of the Hospital, Ms. Bowman, played central role in what transpired in this case. Ms. Bowman believed that she was being harassed by some members of the faculty and some fellow Union members at the Hospital—and that the management of the Hospital was not doing enough to prevent the harassment. In 2001, she filed grievance that was resolved in her favour. She was granted significant remedies, including the right to return to the workplace in 2005. [7] Dr. Rubin was Ms. Bowman’s superior. Ms. Bowman and Dr. Rubin were friends, and he was supportive of her. The 2005 award was not in any way critical of Dr. Rubin; rather, it noted he had attempted to act as an advocate for her. [8] Ms. Bowman’s return to work in 2005 did not go smoothly. She believed two of her co-workers were continuing to harass her and complained about it on numerous occasions to Dr. Rubin. He would arrive at work to find Ms. Bowman waiting to see him. These sessions often ended with Ms. Bowman in tears. [9] Ms. Bowman’s return to work was coordinated effort among the Human Resources division at the University of Saskatchewan, the Union leadership and that of the Hospital. The return to work involved meetings attended from time to time by Mr. Ross and Mr. Nowaselski and, of course, Dr. Rubin. Generally, Dr. Rubin and the Union representatives had an excellent relationship. [10] In March of 2006, in spite of the efforts made to achieve better result, Ms. Bowman filed second Grievance Report alleging harassment at her workplace. [11] Importantly for this appeal, Ms. Bowman’s second Grievance Report accused Dr. Rubin of having “not only refused to prevent the harassment,” but of being “an active part of the harassment himself.” By way of remedy, the Grievance Report requested “[f]ormal and substantial discipline of Dr. Stan Rubin found to have been responsible for the harassment of [Ms. Bowman] or for failure to address and stop such harassment, including the removal of Dr. Rubin from his position as Director of the Veterinary Teaching Hospital….” The Grievance Report asked for “[a]ggravated and punitive damages in the amount of no less than $100,000 for the blatant violation of the Collective Agreement” (Appeal Book, pp. 52a-53a, emphasis added). [12] The Collective Bargaining Agreement between the University and the Union includes grievance procedure. By agreement, the parties bypassed the first step of the procedure and proceeded to the second step in accordance with Article 14.7, which allows the Union to refer written grievance directly to the senior University Human Resources Officer or that person’s designate. [13] In fulfilment of the second step of the grievance procedure, representatives of the Union and the Hospital appeared before Ms. Daigle, Associate Vice-President (Human Resources) for the University of Saskatchewan, on April 26, 2006. Ms. Bowman, however, did not attend the hearing. [14] On September 5, 2006, Ms. Daigle rendered her decision. She found that Ms. Bowman’s complaint had “no merit” and suggested that the University and the Union discuss other alternatives for Ms. Bowman. Significantly, Ms. Daigle stated “[i]t appears from the information provided by the union that her complaints are entirely unfounded and without substance” (Appeal Book, p. 208a, italics in original). [15] The Union decided to proceed to the next step of the grievance procedure, which was to refer the matter to arbitration. date for the start of that hearing was fixed for January 25, 2007. [16] In October of 2006, representatives of the Union prepared second document. Across the top of this document, the words “Notice Re: Harassment Grievance” were printed in bold lettering, in all capital letters at height of one centimetre. The Notice refers to and attaches the Grievance Report. The salient statements, taken from the Notice, are as follows: The attached grievance filed March 21, 2006 on behalf of CUPE member Pam Bowman raises serious issues with respect to personal harassment in the Western College of Veterinary Medicine and particularly at the Veterinary Teaching Hospital. Ms. Bowman had been returned to work after previous harassment complaint was upheld by the University and following resolution of matters relating to her reinstatement. The Union has worked to try and ensure that Ms. Bowman was able to return to harassment-free, non-toxic workplace environment but was forced to file this grievance when Ms. Bowman experienced renewed personal harassment after her return. You will note the Union is seeking significant remedies in this matter as set out in the grievance. By reply dated September 5, 2006 Barb Daigle, Associate Vice-President (Human Resources) denied the grievance maintaining that there was “no merit to the grievance” and that Ms. Bowman’s and the Union’s complaints were entirely “unfounded and without substance.” We disagree. This case is scheduled to be heard by an Arbitrator commencing January 25, continuing January 26 and from January 29 through February 2, 2007. The Arbitrator will make final and binding decision following the hearing on the merits of the grievance and if the grievance is allowed, on the remedies requested by the Union. The purpose of this notice is to request those who may have information with respect to the harassment of Pam Bowman to contact the following Local 1975 person: Sam Nowaselski (…) or the National Servicing Representative, Lois Lamon at …. If you do not have specific information with respect to Ms. Bowman, but have experienced personal harassment yourself at the University, please also advise the Union or Ms. Lamon so that the matter may be taken up by CUPE Local 1975. Contact your bargaining agent if you are not member of CUPE and have information on this matter or if you have experienced personal harassment yourself. copy of this notice and the grievance is also on the Local 1975 website. (Appeal Book, p. 51a; emphasis added) [17] The Notice Re: Harassment Grievance and the Grievance Report were then affixed together. At approximately noon on October 6, 2006, which was the Friday before the Thanksgiving weekend, Mr. Ross placed the combined document on eight public bulletin boards at the Hospital. As usual, members of the public, staff, faculty and students had access to the Hospital during this time period. [18] flurry of communications took place on October 11, 2006 wherein members of the University management expressed their concern to the Union leadership (Appeal Book, p. 287a). The University caused the Notices and Grievance Reports to be removed from the bulletin boards. An emergency meeting was held with Mr. Ross. [19] On October 12, 2006, Ms. Daigle wrote to Mr. Ross stating, inter alia, “[m]ore importantly, the posters attached copies of grievance document, which the University considers to be confidential. In so doing, the rights and privacy of others named in the grievance have been violated in that the grievance contains serious unfounded and slanderous allegations against professionals.” Ms. Daigle invited Mr. Ross to provide her “with the facts and data…to support the allegations made.” (Appeal Book, pp. 289a-290a; emphasis in original) [20] Sometime that week, Mr. Nowaselski wrote an article for the CUPE 1975 Mini Bulletin. In that article, he stated: Please find attached the Original Grievance for Pam Bowman along with an informational poster. If you have any information you would like to share on this grievance please phone the union office at and they will get hold of me and will discuss this further with you. (Appeal Book, p. 59a) The Mini Bulletin reproduced the Grievance Report and the Notice Re: Harassment Grievance. One difference between the Mini Bulletin and what had been published on the bulletin boards at the Hospital is that the Grievance Report, in the Mini Bulletin, precedes the Notice Re: Harassment Grievance and the heading of the latter is no longer in all capital letters. The Union mailed the Mini Bulletin enclosing the Grievance Report and Notice Re: Harassment Grievance to its 1400 members. [21] On October 16, 2006, the Mini Bulletin with its attachments was published on the Union’s website. [22] When the University learned that the Mini Bulletin had been published on the Union’s website, efforts were made to persuade the Union to remove the Notice Re: Harassment Grievance and the Grievance Report from its website. The Union declined to do so. [23] When Dr. Rubin received copy of the Notice Re: Harassment Grievance and the Grievance Report and learned that it had been posted at the Hospital and on the Union’s website, he became quite upset. He felt the republishing of the grievance undermined his authority. He testified that he began experiencing difficulties with staff and he came to believe his staff had lost respect for him. By February of 2007, he began to look for an equivalent position in the United States. [24] Following an unsuccessful bid to obtain what would have been an equivalent position with the same stature in the United States, Dr. Rubin resigned as the Director of the Hospital and returned to his previous position as fully-tenured Professor at the Western College of Veterinary Medicine. The resignation cost Dr. Rubin approximately $6,000 per year in wages, although he conceded that the new posting involved less stress. [25] On April 11, 2007, Dr. Rubin commenced an action in defamation against the Union and against Mr. Ross and Mr. Nowaselski claiming general damages “exceeding $200,000.” At that time, Dr. Rubin did not know about the mail-out to the Union members. After the action was commenced, the Union, on the advice of its solicitor, removed the Mini Bulletin from its website. [26] The Union, Mr. Ross and Mr. Nowaselski filed statement of defence pleading that the words they had published were not defamatory and, in any event, the words were protected by absolute and qualified privilege. They did not plead that the impugned words were true or that they were justified in publishing them. [27] After perceiving further difficulties in his job as Professor arising from the publication of the Notice Re: Harassment Grievance, Dr. Rubin eventually accepted job at equivalent remuneration in private specialty veterinary practice in Tucson, Arizona at the end of 2008. III. Decision of the Trial Judge [28] The trial judge found that Dr. Rubin had been defamed, but he dismissed Dr. Rubin’s claim. He did not accept that the Respondents could rely upon the defence of absolute privilege, but he found they could rely upon the defence of qualified privilege. Notwithstanding his dismissal of Dr. Rubin’s claim, the trial judge provided provisional assessment of damages. He found that considering the circumstances of the case, “a fair amount of general compensation would have been $25,000” (at para. 110). In addition, due to the “mixed results in [the] litigation,” he declined to order costs to either party (at para. 111). With that, Dr. Rubin appealed and the Union cross-appealed the costs award. IV. Positions of the Parties and Questions to be Answered [29] Dr. Rubin submits that the trial judge erred: (i) by finding the defence of qualified privilege applies; and (ii) by assessing the damages at $25,000. [30] The Respondents assert that the trial judge did not err by finding that the publications were protected by qualified privilege, but they seek as well to sustain the result they achieved in the Court of Queen’s Bench by arguing that the trial judge erred first, by finding Dr. Rubin had been defamed, and second, by failing to find that the defence of absolute privilege applies. And, as have indicated, they also assert that the trial judge erred by not awarding them costs. On this last point, they have cross-appealed. [31] The positions advanced by the parties require the Court to answer these questions: 1. Did the trial judge err by finding that Dr. Rubin had been defamed? 2. Did the trial judge err by finding that the defence of absolute privilege does not apply? 3. Did the trial judge err by finding that the defence of qualified privilege applies? 4. If Dr. Rubin’s appeal is successful, what is the appropriate quantum of damages? 5. Did the trial judge err in principle by not awarding costs to the Respondents? V. Analysis A. Did the trial judge err by finding that Dr. Rubin had been defamed? [32] The trial judge correctly referred to Grant v. Torstar Corp., 2009 SCC 61 (CanLII), [2009] S.C.R. 640 at paras. 28 and 29 to determine the elements of the tort of defamation. The required elements as taken from Torstar are that: (i) the impugned words are defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of reasonable person; (ii) the words in fact refer to the plaintiff; and (iii) the words were published, meaning that they were communicated to at least one person other than the plaintiff. Since it was quite clear that the words refer to Dr. Rubin and that they were published, the only real issue for the trial judge was whether the impugned words “would tend to lower Dr. Rubin’s reputation in the eyes of reasonable person.” The trial judge found that the words expressed by the Union would have that effect. [33] The standard of review to apply to the trial judge’s determination in this regard is correctness with respect to whether an impugned communication is capable of bearing defamatory meaning, but whether the expression is in fact defamatory is question of fact and, as such, is reviewable on palpable and overriding error standard (see: Roger D. McConchie and David A. Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004) at pp. 295-96). [34] Counsel for the Respondents asserts that the Court should have considered two factors in assessing whether the words were capable of bearing defamatory meaning. First, based on Netupsky v. Craig, 1972 CanLII 19 (SCC), [1973] S.C.R. 55, the Respondents submit that the trier of fact must consider the context in which an impugned statement is made when determining whether it is defamatory. In this case, the context is the push and pull of labour relations. Second, the Respondents argue that the trial judge should have considered that the impugned statements were contained in the Grievance Report and not in the Notice Re: Harassment Grievance and that the latter document indicated the statements were simply allegations with which the University strongly disagreed. As such, according to the Respondents’ argument, the trial judge should have concluded that the Notice Re: Harassment Grievance had neutralizing effect on the impugned statements contained in the Grievance Report because reasonable person would be able to garner from the context that yet-to-be-determined labour dispute was on-going and therefore the statements would not have tended to lower the reputation of Dr. Rubin in the eyes of reasonable person. This latter point is referred to as the “bane and antidote” argument (see: McConchie and Potts, p. 298). [35] Context is important in determining whether communication is defamatory, but cannot conclude that context ameliorates the effect of the words in this case. The Respondents state they were motivated by two purposes: (i) to find witnesses to support the allegation and solicit other persons to come forward regarding what they believed was poisoned workplace—and thereby carry out their duty to represent their members; and (ii) to inform their members. Yet, nothing about the labour relations context compelled publication in the manner that occurred to achieve those ends. For example, the evidence demonstrated that the Union rarely operated in the manner in which it did in this case. Further, the Union published the same material on two of the three occasions to members of the public who could have no interest in the labour matters at issue—at least to the level of detail presented by the two forms of publication. The labour relations context takes the Respondents only so far. note, as well, that in Netupsky the Court discussed context not in relation to whether the plaintiffs had been defamed, but with respect to whether the plaintiffs had established malice so as to overcome the defendants’ claim of qualified privilege. [36] With respect to the bane and antidote argument, it is true that the Notice Re: Harassment Grievance contains the statement that “Barb Daigle, Associate Vice-President (Human Resources) denied the grievance maintaining that there was ‘no merit to the grievance’ and that Ms. Bowman's and the Union's complaints were entirely ‘unfounded and without substance’,” but the Notice goes on to indicate that the Union disagrees. The Union, through Ms. Bowman, accused Dr. Rubin of not only refusing to prevent the harassment but of being an “active part of the harassment himself.” The Union, again through Ms. Bowman, also demanded significant remedies, including Dr. Rubin’s removal. At the very least, reasonable person would conclude that the Union believed Dr. Rubin took an “active part” in Ms. Bowman’s harassment and that it only awaited the final hearing to prove that such was the case. After all, if the Respondents did not believe Dr. Rubin had taken part in the harassment, reasonable person would ask why the Union would take the extraordinary step of publishing the allegations in the public manner in which it did. Considering the breadth and persistence by which the Union published, doing so not once, but three times and through various mediums, reasonable person would increasingly believe that the allegations were true. And, with such being the case, Dr. Rubin’s reputation would tend to be lowered in the eyes of reasonable person. [37] Thus, conclude that the trial judge made no error in law when he concluded that the words were capable of bearing defamatory meaning notwithstanding the overarching labour relations context. Like the trial judge, conclude that the labour relations context and the purposes for which the communications were posted are more appropriately considered with respect to the defences to the tort of defamation. Having made that legal conclusion, no basis exists by which can conclude that the trial judge made palpable and overriding error by finding Dr. Rubin had in fact been defamed by the publication of the allegations against him. Indeed, the trial judge could, in my view, have come to no other conclusion. B. Did the trial judge err by finding that the defence of absolute privilege does not apply? [38] The Respondents’ next argument is that the trial judge erred by failing to find the publications were protected by absolute privilege. Absolute privilege provides complete immunity regardless of whether or not malice exists. In general, absolute privilege attaches to statements and acts that aid in the “efficient functioning of… governmental institutions: legislative, executive and judicial” (see: Allen M. Linden Bruce Feldthusen, Canadian Tort Law, 9th ed. (Markham, Ont.: LexisNexis Canada, 2011) at 784 citing John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 615). As the authors of Canadian Tort Law note, the law is circumspect in granting absolute privilege, and the scope of the privilege is narrowly interpreted, owing to the potential for abuse of such privilege (at 784). [39] Two issues arise in this case; first, whether the arbitration board to which Ms. Bowman addressed her Grievance Report is the type of “judicial” institution contemplated by the scope of absolute privilege, and second, whether the publication that took place exceeds what is contemplated by absolute privilege. [40] With respect to the first issue, the Grievance Report is the originating document leading ultimately to an arbitration proceeding. The trial judge concluded that an arbitration board or hearing under The Trade Union Act, R.S.S. 1978, c. T-17 is quasi-judicial proceeding (para. 58), which falls within the judicial branch. The trial judge’s conclusion would seem to be the correct one. Administrative boards or tribunals that share similar attributes to those of the judiciary have been found to come within the scope of absolute privilege (see, e.g., Hamalengwa v. Duncan (2005), 2005 CanLII 33575 (ON CA), 135 C.R.R. (2d) 251 (Ont. C.A.), leave to appeal to S.C.C. refused, [2006] S.C.R. ix). [41] The second issue is whether absolute privilege extends to the publication of the defamatory statements in this case. The trial judge found that it did not for two reasons: he found that publishing the statement to achieve the purpose of finding witnesses exceeded what is contemplated by absolute privilege and he also rejected the defence of absolute privilege due to the extent of the publishing. He wrote on these points as follows: [71] The grievance report, per se, while it remained within the confines of its original intended purpose (i.e. the originating document in grievance procedure mandated by The Trade Union Act), would be in my view protected by absolute privilege. However, the impugned words in that document ceased to enjoy that protection once the document was published in such broad way and for the purposes stated above. [42] The trial judge was clearly correct in rejecting the defence of absolute privilege. Circumstances may arise where statements outside of the actual hearing may be subject to the defence. (See: Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, looseleaf (current to Release 4–2012), 2nd ed., vol. (Toronto: Carswell, 1999) under the headings “12.4(5)(l), Investigative Reports to Determine Legal Position,” “12.4(5)(m), Information Given to Initiate Legal Proceedings,” and “12.4(5)(n), Information Given to Investigative Bodies”—all found under c. 12.4(5), “Matters to which Privilege Attaches.”) Having regard for these references, the law may be tending to extend the cloak of absolute privilege to what has been described as “steps preparatory to judicial proceedings” but the purpose in this case was an attempt to find corroborating witnesses. This purpose is not so intimately connected with the process as to justify the extension of the defence of absolute privilege. Moreover, the extensive publication that took place destroys any possible claim that the Union might have to absolute privilege. Again, the trial judge correctly found that the defence of absolute privilege does not apply. C. Did the trial judge err by finding that the defence of qualified privilege applies in this case? [43] The trial judge quoted from Raymond E. Brown, The Law of Defamation in Canada, looseleaf (current to Release 2009–3), 2nd ed. (Toronto: Carswell, 1999) (see: paras. 73-74 of the trial judge’s decision). He cited the definition of qualified privilege from that text and then quoted extensively from passages where the author discusses the scope of the privilege as it extends to unions. He then wrote: [75] Counsel for the defendants points out that s. 25.1 of The Trade Union Act places duty upon the union to fairly represent its members, including representing members on grievances alleging breach of the collective bargaining agreement: 25.1 Every employee has the right to be fairly represented in grievance or rights arbitration proceedings under collective bargaining agreement by the trade union certified to represent his bargaining unit in manner that is not arbitrary, discriminatory or in bad faith. [76] agree with counsel for the defendants that preparing for grievance arbitration can also include locating witnesses to support the grievance. This would be connected with the discharge of the responsibility set out above. Communication with members on grievance matters is also in my view part of discharging the duty of fair representation. This falls in step with the learned author Brown's comments set out above and therefore the publication of the impugned words would be protected by qualified privilege. [77] Plaintiff's counsel expressed concern that the union's communications in part consisted of using the internet. It is now 21st century reality that the internet and web pages will be used by large organizations (such as this union), to communicate with its membership. Brown (above under “Scope of Privilege”), expressed concern about the level of access to such information. In my view CUPE was entitled to communicate to the union membership in the fashion it did, subject to the concerns pertaining to malice. (emphasis added) [44] Later in his reasons, dealing with malice, the trial judge wrote: [84] The defendants’ point of view appears to be that Dr. Rubin was not policing the situation in the workplace while the back to work program was in place. The defendants adopted the complaint of Ms. Bowman. The complaint or grievance, being that despite weeks of meetings and discussions and thorough review of policy, Ms. Bowman still maintained she was being harassed. [85] The wording of the grievance is unfortunate. It would have been far better to approach the issue in more general way than to directly identify Dr. Rubin. [86] However, am satisfied that the defendants undertook the preparation and drafting of the grievance report very seriously. The grievance report wording was based on their collective belief that the plaintiff seemed to be unable to control the situation as it unfolded each day at the workplace. [87] The evidence indicates that in the minds of the defendants (rightfully or not but certainly bona fide), the buck stopped at the plaintiff's desk. This well may have been an overly simplified reaction to the rather complex and protracted workplace problem. have already expressed my opinion that Dr. Rubin was doing all that he believed he could reasonably be expected to do. However, cannot conclude on the evidence before me that any of the defendants in drafting the grievance report or in publishing the grievance report, acted maliciously. [88] The evidence of both Mr. Ross and Mr. Nowaselski and by default, that of the union, was that they basically held the head of the department directly accountable. Other observers may have come to different conclusion. However, cannot say that the defendants acted with reckless regard of the truth or for any improper purpose other than representing union member. (emphasis added) [45] In my respectful view, the trial judge correctly identified the law from Brown on Defamation, but he did not correctly apply it. For ease of reference, Brown at 13.1 (Vol. 4) defines the ambit of qualified privilege: There are certain occasions on which person is entitled to publish untrue statements about another, where he or she will not be liable even though the publication is defamatory. One such occasion involves conditional or qualified privilege. No action can be maintained against defendant unless it is shown that he or she published the statement with actual or express malice. communication is protected by qualified privilege if it is fairly made on privileged occasion by person in the discharge of some public or private duty, or for the purpose of pursuing or protecting some private interest, provided it is made to person who has some corresponding interest in receiving it. The duty may be either legal, social or moral. The test is whether persons of ordinary intelligence and moral principle, or the great majority of right-minded persons, would have considered it duty to communicate the information to those to whom it was published. (emphasis added, footnote omitted) [46] When the trial judge applied this test, he focussed entirely on the Union’s duty to represent its members, including the duty to locate witnesses to support grievance. He quotes accurately from Brown on Defamation, but in the quotations from that text, the authors clearly state that the manner of communication must be proper and reasonable (see: Brown on Defamation at 13.6(3)(d)(ii)(A), (B) (C)). Specifically, the scope of the privilege extends to union publications made on proper occasion, in proper manner and to appropriate parties (see: Brown on Defamation at 13.6(3)(d)(ii)(C)). [47] The question of whether communication is subject to qualified privilege is question of law and is, therefore, subject to review on standard of correctness (see: Douglas v. Tucker, 1951 CanLII 54 (SCC), [1952] S.C.R. 275 at 286 cited in McConchie and Potts at 368). McConchie and Potts also provide helpful list of criteria to consider when determining whether communication is privileged on the grounds of duty or interest: i) the content of the alleged defamatory expression; ii) who published it; iii) why it was published; iv) to whom it was published; v) under what circumstances it was published; vi) the nature of the duty which the defendant claims to discharge or the interest which the defendant claims to safeguard; vii) whether there are any statutory duties imposed on the speaker; viii) the urgency of the occasion; ix) the manner in which the defendant conducted him- or herself; x) whether or not the expression was published in breach of confidence; xi) whether or not the defendant officiously volunteered the information or whether it was in answer to an inquiry; and xii) whether or not what was published was germane and reasonably appropriate to the occasion (see McConchie and Potts, p. 371). The authors cite, inter alia, Halls v. Mitchell, 1928 CanLII (SCC), [1928] S.C.R. 125, per Duff J. at 136, 139 and 142 and Sapiro v. Leader Publishing Co., 1926 CanLII 130 (SK CA), [1926] D.L.R. 68, Lamont J.A. at 70-71 (Sask. C.A.), citing inter alia, Stuart v. Bell, [1891] Q.B. 341 at 350, as authority for these propositions. The authors also state that whether defamatory publication went beyond what is germane and reasonably appropriate to the occasion is question of law (see: p. 368, citing Douglas v. Tucker, 1951 CanLII 54 (SCC), [1952] S.C.R. 275 (Toronto: Carswell, 2012) at 286). Similarly, Professor Klar states that “[t]he defendant will exceed the purpose of the qualified privilege and lose its protection either by using words which were not relevant to the occasion, or communicating the material to those who were not entitled to receive it” (see: Lewis N. Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012 at 816)). [48] Based on my review of the authorities, I conclude that the trial judge did not give sufficient effect to: (i) the wording of the defamatory expressions; (ii) the circumstances under which they were published and, in particular, the chronology of events and the separate instances of publication; (iii) the persons to whom the words were published; and (iv) whether what was published on each occasion was germane and reasonably appropriate to that specific occasion. will expand on each of these points. [49] First, the trial judge erred by not giving effect to the wording of the two documents, and how the Notice Re: Harassment Grievance attached the Notice of Grievance, affirmed its contents and drew the public’s attention to it in dramatic fashion. The choice of the title “Harassment Grievance,” the large font, the capitalization and the bolding sensationalize the allegations contained within it. The trial judge held that “[t]he defendants undertook the preparation and drafting of the grievance report very seriously” (para. 86), but the point is not whether they were careful in preparing the Grievance Report but whether they were careful in republishing it. [50] The trial judge also found that “the grievance report wording was based on their collective belief that [Dr. Rubin] seemed to be unable to control the situation as it unfolded each day at the workplace” (para. 86), but that is not what the Respondents wrote in the Grievance Report. This is what they said in the Grievance Report: The administrator of the Veterinarian Teaching Hospital, Dr. Stan Rubin, has not only refused to prevent the harassment but has been an active part of the harassment himself. (Appeal Book, p. 52a) They also asked for remedy that emphasized Dr. Rubin’s participation in the harassment. By attaching the Grievance Report to the Notice Re: Harassment Grievance and asserting in the latter document that the University erred by denying the merits of Ms. Bowman’s claim, the Respondents continued to assert that Dr. Rubin was “an active part of the harassment himself” as well as refusing to prevent it. [51] Secondly, do not believe the trial judge gave effect to the circumstances under which the defamatory words were published having regard, in particular, for the chronology of what happened in this case. It is critical to understand that the Grievance Report and the combined document of the Grievance Report and the Notice Re: Harassment Grievance were prepared and published at different times—against backdrop of changing knowledge on the part of the Respondents. [52] The Grievance Report was filed on March 21, 2006. Dr. Rubin did not and could not take any issue with the allegations made against him in that document—if no further publication of it had taken place. Then on April 26, 2006, hearing was held as part of the second step of the grievance process, following which it was determined, albeit at preliminary stage, by means of letter dated September 5, 2006, that no basis exists for the damning allegations made in the Grievance Report—and, indeed, Ms. Bowman did not even attend the hearing (Appeal Book, p. 208a). After receipt of the September 5, 2006 letter, the Union prepared the Notice Re: Harassment Grievance for the purpose of finding the evidence to support the defamatory allegation against Dr. Rubin that the letter advised the Union that it lacked for the making of the allegation in the first place. Unlike the Grievance Report, this document was not signed by Ms. Bowman but by the Union itself. [53] The two documents were then posted on the Hospital public boards over four-day period when the Hospital was open to the public. But that does not end the matter. [54] Following the University’s strong objections to the publication of the two documents by posting at the Hospital, the Union mailed the newsletter to its 1400 members and posted the newsletter on its website—without any controls governing access to the document. Only after the within lawsuit was commenced did the Union remove the document from its website. [55] Nowhere in the trial judge’s reasons does he mention that: (i) the second step of the grievance process had intervened between the preparation of the Grievance Report and the Notice re: Harassment Grievance; (ii) notwithstanding the University’s strong objections to the publication that had taken place in the Hospital, the Union proceeded to wider publication by means of mail-out to its members and posting on the website; and (iii) the newsletter remained available on the internet until lawsuit was commenced. [56] The third error relates to the recipients of the publications. Cory J. in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130 at para. 143 cited with approval the following reasoning of Lord Atkinson with respect to qualified privilege in Adam v. Ward, [1917] A.C. 309 (H.L.) at 334: privileged occasion is an occasion where the person who makes communication has an interest or duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has corresponding duty to receive it. This reciprocity is essential. Further, as the Supreme Court of Canada stated in Jones v. Bennett, 1968 CanLII 126 (SCC), [1969] S.C.R. 277 at pp. 284 and 285, “a plea of qualified privilege cannot be upheld where the words complained of are published to the public generally or, as it sometimes expressed, to the world.” Qualified privilege could attach only to the separate occasions by which the statement was published in this case (i.e., on the bulletin boards, on the internet, and in the Union mail-out) if the recipients of the published statements had mutual interest in receiving those statements. Specifically, qualified privilege could only extend to informing members of the Union’s work in pursuing the grievance and gathering evidence from persons who might be able to shed light on the grievance. [57] As have indicated, the Union published these two documents in three places. The possible audience included: (i) non-Unionized staff at the Hospital and members of the public who had free access to it; and (ii) members of the public who searched the internet and came upon the Union’s website—to which access was not restricted. [58] The trial judge did address the question of publishing in relation to the internet (at para. 78), but he dismissed this aspect of the complaint by finding in effect that the use of the internet is fact of life. As Brown on Defamation states “[t]he use of an internet website for the circulation of information to the union membership may be appropriate and privileged but only if reasonable steps are taken to restrict access to the website by the public generally or to those not interested in the information” (at 13.6(3)(d)(ii)(C), vol. 4). The internet is not tool that can be used to expand qualified privilege so as to justify the broad publication of defamatory statement, but rather it exacerbates the libel. In this case, it is common ground that the Union’s website was open to the public on the internet, without any access code protections or other privacy protections. Anyone with internet access could gain access to it. It is irrelevant, in my view, that Dr. Rubin did not present any evidence to the Court to prove that anyone did in fact search the internet to find the communication. [59] As such, the Respondents are unable to satisfy the reciprocity of interests aspect of the defence of qualified privilege as endorsed in Church of Scientology (i.e., that the person publishing the information had an interest/duty to do so, and that the person receiving the information had sufficient interest in receiving it). In such circumstances, the plea of qualified privilege does not apply. [60] The fourth error pertains to whether what was published on each occasion was germane and reasonably appropriate. recognize that the Union is obliged to keep its members informed and to gather evidence to support grievor’s claim. Indeed, as Brown on Defamation at 13.6(3)(d)(ii)(A) and (B), vol. 4, makes clear “a union may communicate to its members information regarding public labour dispute, express its dissatisfaction with the employer, and urge its members to boycott the employer's products, and it may address communications critical of competing union to its officers and members and other workers in an industry it is attempting to organize.” Strong language in employer-union relations can fall within the realm of protection offered by qualified privilege, but as the Alberta Court of Appeal has said “the defence of qualified privilege is not absolute” (Teamsters, Local 987 v. U.F.C.W., Local 401), 2005 ABCA 263 (CanLII), [2006] W.W.R. 16 at para. 26). [61] If certain occasion attracts qualified privilege, it does not necessarily follow that all the statements made on that occasion attract qualified privilege. To inform its membership and to find witnesses to support its grievance, the Union could have sent out general notice. The Union did not need to name Dr. Rubin and make the allegations it did to achieve its goal. The Union overreached, thereby placing the statement outside the ambit of the defence of qualified privilege. [62] appreciate that counsel for the Respondents asked this Court to consider that the University had failed to designate one or more of the bulletin boards at the Hospital as Union boards, but this hardly makes difference to Dr. Rubin or the incidental viewer of the public boards as they existed when the defamatory statements were posted. The fact remains that the defamatory statements in the case at bar were posted in public place at the Hospital on each of the eight bulletin boards, meaning any member of the public who used the services of the Hospital could have seen it at any time of the day from October 6-11, 2006. This means that individuals who had no interest in seeing the documents were able to see them. And, of course, the Hospital was not the only place where the Respondents published the documents. [63] In the within appeal, the issue the trial judge had to confront was whether the Union went beyond what was necessary and reasonable to fulfil its duty and to achieve its purpose of fair representation. In my respectful view, having regard for the manner of communication, the wording of the communications, their timing and to whom they were given, the trial judge erred in law by concluding that the defence of qualified privilege applied. D. If Dr. Rubin’s appeal is successful, what is the appropriate quantum of damages? [64] Dr. Rubin argues that the provisional assessment of damages in the amount of $25,000 was both wholly erroneous and founded upon mistaken principles of law. In support of his position, he points to: (i) the importance of his position as the director of the Hospital, and the amount of hard work and education it took to solidify his position; (ii) the deleterious effect on his reputation and on his personal wellbeing; and (iii) the shock of the defamatory statements considering that he was actually an avid supporter of, and advocate for, Ms. Bowman, and his belief that he and the Union had managed to establish good working relationship. [65] On the whole, Dr. Rubin argues that the trial judge did not consider all the relevant factors and also considered irrelevant factors. He argues that if the trial judge had properly considered the relevant factors and ignored the irrelevant factors, he would be entitled to $300,000 for general damages, $150,000 for aggravated damages, and $300,000 for punitive damages. Therefore, in total, Dr. Rubin seeks $750,000 in damages. [66] With respect to his claim for aggravated and punitive damages, Dr. Rubin submits that the trial judge erred by failing to properly consider that the Respondents were motivated by malice. To support his claim for malice, he points to certain relationships existing between Union members and the Hospital that he says means the Union had wider agenda than the resolution of Ms. Bowman’s grievance. [67] The Union defended the provisional assessment of damages on the basis that the evidence did not demonstrate higher than normal assessment of general damages. In Church of Scientology, the Supreme Court of Canada was asked to establish “cap” for general damages for defamation. The Court declined to do so for several reasons, including that “a review of the damage awards over the past nine years reveals no pressing social concern” as “from 1987 to 1991, there were only 27 reported libel judgments in Canada, with an average award of $30,000” and “from 1992 to 1995, there have been 24 reported libel judgments, with an average award of less than $20,000” (para. 169). Counsel for the Respondents then drew the Court’s attention to Angle v. LaPierre, 2008 ABCA 120 (CanLII), 2008] W.W.R. 600 where the Court refused to increase total award of $11,511 for general damages awarded against an education activist who assisted several parents in pursuing complaints against series of teachers.[1] [68] The standard of review of an award of damages is well-known. In Woelk v. Halvorson, 1980 CanLII 17 (SCC), [1980] S.C.R. 430 at 435-36, the Court stated that an appellate court may only interfere with an assessment of damages if: (i) the assessment is wholly erroneous; (ii) the assessment was not based upon any evidence; or (iii) the assessment was based on mistaken or wrong principle. query whether the standard of review need be applied with the same rigour to provisional assessment of damages as court would apply to an actual award of damages, particularly where the appellate court views the legal effect of the evidence differently than the trial court. In any event, I am satisfied that in the whole of the circumstances, which I have reviewed extensively in connection with the Respondents’ claim for qualified privilege, $25,000 is a wholly erroneous assessment of the damages in this case. [69] do not consider myself bound by the “range” of damages mentioned in Church of Scientology. Indeed, it would be clear error on the part of an appellate court to assess an award made by trier of fact based on “cap” of $20,000 that the Supreme Court of Canada specifically rejected in Church of Scientology. Rather, this Court must be guided by the general principles stated by the Supreme Court in Church of Scientology as applied in the context of this case. note, as well, that awards for libel have generally been increasing (see: McConchie and Potts at p. 865; Klar, Tort Law, supra at 834). Exceptions exist, including Angle cited by the Respondents. [70] In Church of Scientology, the Court endorsed the principles articulated in Gatley on Libel and Slander, 8th ed., London: Sweet Maxwell, 1981 at pp. 592-593 as the basis upon which damages for libel should be assessed. The trier of fact is entitled to take into consideration all of the circumstances, including in particular: (i) the conduct of the plaintiff, his position and standing; (ii) the nature of the libel; (iii) the mode and extent of publication; (iv) the absence or refusal of any retraction or apology; and (v) the whole of the defendant’s conduct from the time when the libel was published down to the very moment of the verdict. These general principles subsume many others, referred to in the jurisprudence. Of particular relevance in case such as this one is that the capacity to cause damage increases with the defendant’s reputation (see: Lewis N. Klar, Remedies in Tort, Leanne Berry (ed.), looseleaf, vol. (Toronto: Carswell) at 6-73 citing McElroy v. Cowper Smith, 1967 CanLII 70 (SCC), [1967] S.C.R. 425). [71] The trial judge justified the award of $25,000 in this case with these reasons: [95] The plaintiff was quite upset with the posting of the grievance report on the bulletin boards. To me that was the primary source of his unhappiness. The plaintiff of course was also upset that the grievance report went out with the newsletter and ended up on the website. [96] The plaintiff complains that in essence his stature as the director of the VTH was affected by the impugned words in the grievance report. According to the plaintiff, this caused him ultimately to resign as the director of the VTH and take job as full-tenured professor at the Veterinary College in Saskatoon. [97] note that it appears Dr. Rubin had the full support of the Dean of the Veterinary College and the HR department of the University. In fact the Dean took an active role in chastising the union for publishing the grievance report. [98] It was the plaintiff's sole decision to resign as the director of the VTH and there was no evidence that there was any other pressure from anyone for him to do this. [99] Dr. Rubin then re-entered the faculty as full-tenured professor. Apparently he was doing what he loved to do. However, the plaintiff continued to feel out of place. Dr. Rubin was not able to fully particularize what was causing this unhappiness. [100] Dr. Rubin admitted that being full-tenured professor and not having to worry about the administration of the VTH would be less stressful. [101] In any event, it was around this approximate time that he decided to apply for the director of veterinarian hospital in the United States and also showed interest in "headhunter" who sought out his abilities and talents for employment in the United States. [102] Dr. Rubin seems to have had some degree of selection in terms of where the headhunter was going to place him. The plaintiff indicated preference to Tucson. Again, Dr. Rubin appears to be doing what he has trained for and what he likes to do, namely highly-specialized veterinarian. [104] have no difficulty in appreciating Dr. Rubin's concern about the wording of the grievance report and the fact that it was circulated. However, as noted, he continued to receive the full support of his Dean. In addition, stepping down as director and moving into less stressful position as full-tenured professor does not seem to be particular hardship. In addition, the plaintiff seems to have accommodated his desire to move from Saskatoon with employment in Tucson. [emphasis added] [72] In my respectful view, the trial judge justified his award by undervaluing the impact of what had happened to Dr. Rubin and the effect upon him. To say that it was the “plaintiff’s sole decision to resign” overlooks completely why he resigned: he resigned because the Notice Re: Harassment Grievance with the Grievance Report attached was publicly published in the Hospital, placed on the Union website and mailed to 1,400 households. The Grievance Report demanded that Dr. Rubin be fired. The Union got what it asked for, albeit by Dr. Rubin acting voluntarily in the face of false allegation against him. No one, even those caught up in the heat of employer-and-employee relations, should be treated in the manner that the Union treated Dr. Rubin. [73] An allegation of harassment is nebulous claim, encompassing conduct ranging from sexual misconduct to bullying. The libel accused Dr. Rubin of taking an active part in the harassment of Ms. Bowman with no indication of the nature of the harassment. Significantly, Dr. Rubin had befriended the grievor, supported her and met with her frequently. She gave him gifts and was seen leaving his office in tears—adding to the ambiguity of the allegation made in the context of this case. Given the nature of the allegation and the breadth of its publication, it would be difficult, if not impossible, to obliterate the lingering doubt in the minds of some that Dr. Rubin had done something wrong. It, of course, must be noted that Dr. Rubin was completely innocent of wrong-doing. [74] Further, the Union mailed the Mini-Bulletin and posted it on the website knowing the University’s strong objections, and refused to remove the information from its website until the lawsuit was commenced. No apology or retraction has been offered for any of this behaviour. [75] An award of $25,000 is simply too little to pay for actions that caused highly respected individual, occupying significant position, to leave that position and then to subsequently leave his country for job of less stature. [76] The Supreme Court of Canada made it clear that little is to be gained from detailed comparison of libel awards in other cases as each libel case is unique. The significance of Church of Scientology, however, is the extent to which the Court commented upon the seriousness of damage to personal reputation caused by defamatory comments unprotected by privilege. Cory J., speaking for the Court, made these comments: The consequences which flow from the publication of an injurious false statement are invidious; (para. 165) It will be extremely difficult to correct the impression left with viewers that [the plaintiff] must have been guilty of unethical and illegal conduct; (para. 165) All who read the news reports would be left with lasting impression that [the plaintiff] has been guilty of misconduct. It would be hard to imagine more difficult situation for the defamed person to overcome; (para. 166) defamatory statement can seep into the crevasses of the subconscious and lurk there ever ready to spring forth and spread its cancerous evil. The unfortunate impression left by libel may last lifetime. Seldom does the defamed person have the opportunity of replying and correcting the record in manner that will truly remedy the situation. (para. 166) As lawyer, [the plaintiff] would have no way of knowing what members of the public, colleagues, other lawyers and judges may have been affected by the dramatic presentation of the allegation that he had been instrumental in breaching an order of the court and that he was guilty of criminal contempt; (para. 177) He would never know who, as result of the libellous statement, had some lingering suspicion that he was guilty of misconduct which was criminal in nature. He would never know who might have believed that he was person without integrity who would act criminally in the performance of his duties as Crown counsel. He could never be certain who would accept the allegation that he was guilty of criminal breach of trust which was the essential thrust of the libel. (para. 178) [77] Many of these statements could be said in relation to Dr. Rubin. He had reached the pinnacle of his career—occupying one of handful of such positions in North America. Like the plaintiff in Church of Scientology, Dr. Rubin testified about the significant effect of the libel on him. In relation to the Grievance Report alone, he said: was horrified. was angry. was shocked. was embarrassed. was insulted. You know, after everything that, you know, had done to assist Ms. Bowman in the years that preceded this, mean felt like here these words are, which are completely untrue and unfounded, on paper. felt, you know, this was the greatest betrayal. held myself, you know, to the higher—highest standards of how dealt with staff and people and this was beyond anything ever imagined to be called said that harassed someone and failed to prevent harassment, especially with this particular case where was an advocate, friend for so many years. (Appeal Book at pp. 59 to 60). [78] With respect to publication of the two documents together, Dr. Rubin testified: guess the first time—although was shocked and [horrified] thought, well, you know, this is labour relations and it's one thing, you know, we're meeting behind closed doors to discuss this. Now it's open to the public, everybody can see this so, you know, it magnified my reaction. You know, the anger, the shock and the embarrassment that it was out there for anybody who walked by to see (Appeal Book at p. 61). [79] He stressed that no one had ever reproached him about his conduct vis-à-vis Ms. Bowman before and this magnified his sense of betrayal (Appeal Book at p. 61). [80] Regarding his decision to resign as director, he further described the impact of the publications on him: The experiences were negative. felt that my capacity to manage the Veterinary Teaching Hospital in meaningful way was diminished considerably and sensed that had lost respect with the staff because of what came out. You know, if it could imagine that if they read it they had to presume it had to be true. You know, it was written on paper, it was posted on the bulletin board. It must be true, so he has to harass people. And so my capacity to direct the hospital, you know, was diminished and felt that was not being any―effective any longer. The staff challenged me on things that thought they were taking advantage of the teaching hospital and the university but rather than have big fight about it, you know, things―you would let things go rather than have it erupt into some kind of altercation. It stopped being fun. mean, took the job that―a lot of people would question why one would want to take an administrative job and move out of faculty position which is so nice and safe and protective. took it because it was challenge and could move that teaching hospital forward, and did. But, you know, in the aftermath of this, it wasn't fun anymore, wasn't sleeping well, and took stock of the situation and decided that was not going to continue as VTH director. (Appeal Book at pp. 66-67). [81] As to why he left the University of Saskatchewan, he testified: The environment had changed for myself such that couldn't work there anymore and didn't have could feel the coolness when went into the environment of the teaching hospital from the staff. When―that was the main―I came to work at the university to teach clinical medicine and when you're in the clinical environment and the environment is not positive anymore, it stops being fun. So there was coolness and distanceness (ph)―a distance that, you know, felt when went into the clinic. felt was somewhat of pariah down there and had conversations with, you know, friends who were in the faculty association, you know, what―what do think could do and one of the advices got was, well, you could just―you know, you're fat member of the faculty, you could just close your door for ten years until you retire, and just couldn't do that. couldn't see myself doing that. (Appeal Book at pp. 68-69) [82] Having regard for the same factors that caused me to conclude that $25,000 is a wholly erroneous assessment of general damages, including what was said, how it was published and the effect on Dr. Rubin, I conclude that general damages should be fixed in this case at $100,000. In fixing this amount, I have considered that: (i) the Respondents published the two documents by mailing them and placing them on the website—over the strong objections of the University; (ii) the documents remained on the website some six months after the University demanded that they be removed; (iii) no apology or retraction has ever been made; and (iv) the Union appears to have had no conception of the harm caused to Dr. Rubin. On this last point, note in particular the testimony of Mr. Ross to the effect that such allegations “go with the territory” (see: Appeal Book at pp. 337 to 340). It is also significant that the allegations were made, not by an individual with little credibility, but by an important body whose statements were more likely to be believed. [83] Having regard for the comments in Church of Scientology, have not relied extensively on awards in other cases, but have reviewed them. From my review of the authorities, conclude that since Church of Scientology, courts have given substantial awards (awards over $100,000), especially in the provinces of British Columbia and Ontario, but generally courts are still inclined to avoid such awards. The courts must always be mindful of the impact of sizeable award on the free speech in question (Klar, Tort Law, supra, p. 833). In addition, the facts of most of the cases that have given substantial awards indicate more extreme and egregious conduct than the facts in the within case. also note that the highest award granted in this Province remains Duke v. Puts, 2001 SKQB 130 (CanLII), 204 Sask. R. 130, aff’d 2004 SKCA 12 (CanLII), 241 Sask. R. 187, at $100,000 general damages and $150,000 aggravated damages. [84] In rejecting an award higher than $100,000, have specifically considered the following factors: (i) the documents remained on the public bulletin board short period of time; (ii) the Mini Bulletin was “buried” to some extent in the archival portion of the Union’s website; (iii) the comments were made in labour relations context; (iv) the Respondents did not plead that the statements were true or that they were justified. do not place too much weight on the last point, however, because efforts were made at trial to persuade the trial judge that if manager is not controlling the harassment, the manager is taking “part” in it. Mr. Ross testified at some length, trying to demonstrate that Dr. Rubin took part in the harassment because of his managerial position (pp. 229, 325, 327). Indeed, the trial judge felt compelled to make finding that Dr. Rubin did not actively harass Ms. Bowman (para. 45)—notwithstanding the fact that the Respondents had not pled truth or justification. [85] Having regard for all of the above facts and factors, I have concluded that an award of $100,000 provides sufficient compensation and appropriately balances the positions of the parties. [86] To sustain an award of aggravated damages, the trier of fact must make finding of malice, which the jury made in Church of Scientology. The Supreme Court upheld the jury’s award of $500,000 saying the jury had more than enough evidence to support its decision including: (i) the existence of file on the plaintiff; (ii) designating the plaintiff as “Enemy Canada”; (iii) evidence that the Church of Scientology wanted to “neutralize” the plaintiff; (iv) the organization of press conference discussing legal action against the plaintiff to ensure widest possible dissemination; (v) continuation of the contempt proceedings against the plaintiff even though the Church of Scientology knew the allegations were false; and (vi) the post-trial actions of the Church of Scientology. Having regard for all this, the Supreme Court was confident that the plaintiff had demonstrated that the Church had acted with real and persistent malice. [87] In addition, the jury found that the Church of Scientology’s conduct was so outrageous as to require punitive damages. It awarded $800,000 in punitive damages despite the fact that general and aggravated damages already totalled $800,000. However, as the Supreme Court stated, any doubt that punitive damages were inappropriate due to the high total of general and aggravated damages was removed once the Church of Scientology’s post-verdict misconduct was witnessed. During the appeal, it became evident that no amount of general or aggravated damages would have deterred the Church of Scientology, thus punitive damages were needed. [88] In this case, the trial judge found that the Union had not acted maliciously and he specifically found no merit to the allegation of collusion between member of the teaching staff of the Hospital and the Union. It is difficult to find fault with those findings. note that the Ontario Court of Appeal in Rogacki v. Belz (2004), 2004 CanLII 21439 (ON CA), 243 D.L.R. (4th) 585 (Ont. C.A.), leave to appeal to SCC refused, [2005] S.C.R. vi, has convincingly reasoned that finding of malice for the purposes of damages is different from finding of malice for the purposes of liability. The former is broader because it can take into account the conduct of the plaintiff before and after the publication of the defamatory statement, up until the point of trial. The latter only considers malice in the context of the published defamatory statement, and thus is narrower in nature. However, even if one considers the conduct of the Respondents in the broader sense, all aspects of what makes an award of aggravated damages appropriate in this case have been subsumed in the award of general damages. Since the issuance of the statement of claim, the Respondents have not engaged in any tactics that can be said to exacerbate or even to maintain the libel. [89] With respect to punitive damages, agree with the trial judge that the behaviour of the Respondents is not so outrageous as to support such an award. Further, the Union acted to remove the offending material from its website once the lawsuit had been commenced. The defamation has not been repeated. Thus, would make no award of punitive damages. [90] final point must be made. In fixing the award of damages at $100,000, have not differentiated between any of the Respondents as no submissions were made to the Court expressing anything but joint and several liability. It appears to have been common ground that Messrs. Ross and Nowaselski were the proper officers of the Union with respect to this matter and were acting in the scope of their authority. E. Did the trial judge err in principle when he decided not to award costs to the Respondents? [91] Having found that the appeal should be allowed in Dr. Rubin’s favour, the only relevance of this issue is with respect to costs of the cross-appeal. The trial judge did not award costs as the results were “mixed.” He found the results were mixed because Dr. Rubin had proven that he had been defamed, but the Respondents had proven that the communications were protected by qualified privilege. [92] In defamation action, the court can only consider whether defence exists after finding that the plaintiff has been defamed. In that sense, in every defamation case where defence is accepted, the results are mixed. It is the nature of defamation action. The plaintiff will have proven defamation, but the defendant will have successfully proven that the publication of the defamed words was privileged in some way—meaning that the plaintiff will not ultimately have been successful. That does not mean that a trial judge in such circumstances could not decline to order costs to a successful defendant, but it is not appropriate to decline to do so on the basis of “mixed results.” Finding for party on some issues, which do not affect any aspect of the remedy, does not make the results mixed. Thus, agree with counsel for the Respondents that costs would normally be awarded to the defendant who has succeeded in proving that the defamatory publication was privileged, subject to the proper exercise of the trial judge’s discretion to withhold costs in an appropriate case. [93] The appeal is allowed with costs to Dr. Rubin in this Court and in the Court of Queen’s Bench. Dr. Rubin shall have general damages against the Respondents in the amount of $100,000. Since I have allowed the appeal, the cross-appeal is dismissed, but given that the Respondents are clearly correctwith respect to the issue raised in the cross-appeal, it is appropriate in the circumstances of this case to dismiss it without costs. DATED at the City of Regina, in the Province of Saskatchewan, this 1st day of March, A.D. 2013. “Jackson J.A.” Jackson J.A. concur “Klebuc C.J.S.” Klebuc C.J.S. concur “Lane J.A.” [1] An award of $20,000 in general damages against one set of parents was not appealed by either the plaintiffs or the defendants (see: 2006 ABQB 198 (CanLII) at paras. 306 to 309).

The appellant appealed the Queen's Bench decision that denied him damages for defamation (see: 2010 SKQB 249). The trial judge held that the defence of qualified privilege protected the Union and its representatives (the defendants in the action) when the latter republished a grievance defaming the appellant by falsely accusing him of having participated in the harassment of an employee. The trial judge fixed a provisional award of $25,000. The appellant's grounds of appeal were that the trial judge erred in finding that the defence applied and by assessing damages at $25,000. The respondents cross-appealed on the ground that the trial judge had erred in denying them costs. HELD: The Court held that the trial judge had erred in finding that the defence of qualified privilege applied. Although she correctly identified the law, she had not correctly applied it because she had not given sufficient effect to 1) the wording of the defamatory expressions; 2) the circumstances in which they were published and, in particular, the chronology of events and the separate instances of publication; 3) the persons to whom the words were published; and 4) whether what was published on each occasion was germane and reasonably appropriate to the specific occasion. In general, the Court noted that the respondents could have fulfilled their duty to notify its membership of the grievance filed by the member who alleged the harassment and made its effort to find witnesses to support the member's grievance by sending out a general notice. It did not need to name the appellant and make the allegations it did to achieve its goal. The respondent overreached, thereby placing the statement that the appellant had participated in the harassment of the employee outside the ambit of the defence of qualified privilege. The Court awarded general damages in the amount of $100,000. It held that the trial judge's assessment of damages was erroneous and founded upon mistaken principles of law. The Court was not bound by the range of damages mentioned by the Supreme Court in the Church of Scientology decision but only to apply the principles established in it to the context of this case. The provisional award of $25,000 for general damages was erroneous because the respondents published the documents by mailing them and placing them on the Union's website, over the strong objections of the employer. The respondents left the documents on the website for 6 months after the employer demanded that they be removed. The respondents had never offered an apology and appeared not to have recognized the harm that had been caused to the appellant. An award of aggravated damages was subsumed in the general award and the Court agreed with the trial judge that punitive damages were not warranted because the respondent had not been motivated by malice. The respondent's cross-appeal was dismissed without costs. However, their position was clearly correct in the circumstances: it was not appropriate for the trial judge to decline to order costs in their favour on the basis of 'mixed results', because in defamation cases, the results are invariably mixed.

d_2013skca21.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 168 Date: 20041213 Between: Docket: 1041 Nicole Clavelle and Joseph Paul Clavelle Coram: Tallis, Cameron and Lane JJ.A. Counsel: Lori L. Gollan for the Appellant Tiffany M. Paulsen for the Respondent Appeal: From: Div. 004689 of 2002, J.C. of Battleford Heard: December 13, 2004 Disposition: Appeal dismissed (Orally) Written Reasons: December 14, 2004 By: The Honourable Mr. Justice Tallis In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Lane TALLIS, J.A. (Orally) [1] We do not need to hear from you, Ms. Paulsen. [2] We are all of the opinion that this expedited family law appeal must be dismissed. [3] The appellant Nicole Clavelle appeals from an order of Ryan-Froslie J. which directed that Danelle, the daughter of the parties, shall attend kindergarten in Saskatoon during the seven week period before the trial fixed for February 21, 2005. For convenience we reproduce the following passages from her written reasons: pre-trial management conference is set for October 5, 2004, after which trial date will be set. It is likely that the trial will proceed in December, 2004 or January, 2005. It must be kept in mind that the application for variation does not relate to final order, but rather an interim one. Interim orders are meant to be temporary until the matter can properly be adjudicated. Counsel for both parties acknowledged in argument that joint custody with an equal sharing of time should continue pending trial. As such, there is no need to vary the interim order. The real issue is where Danelle will attend kindergarten. As indicated above, this matter will be proceeding to trial within the next three to four months. Subject to the parties reaching different agreement, there shall be an order that Danelle continue in kindergarten in North Battleford up to and including December, 2004. Commencing in January, 2005, Danelle shall attend kindergarten in Saskatoon. The evidence discloses that Danelle is happy, well-adjusted child. do not anticipate any problems with her adjusting to change in schools in January and it will give her the opportunity to make friends in both of the communities where her parents reside. Mr. Clavelle’s move to Saskatoon will impact the terms of the final order with regard to the parenting issue. Danelle’s primary residence, and where she will attend school, will need to be resolved prior to her entering Grade 1. That is matter that should be left to the trial judge. The parties indicated they would be able to work out an equal sharing of Danelle’s time once they know where she will be attending kindergarten. If they are unable to do so, they shall have leave to bring this matter back before me by telephone conference within 30 days. If the matter is brought back before me, Danelle’s proposed school schedules, as well as any extra-curricular activities and the parties’ work schedules, should be provided. [4] This order is essentially discretionary order in protracted family law litigation. In such circumstances the Court should not interfere with discretionary order unless it is clearly wrong or is founded on wrong principle of law. The controlling standard of review is succinctly stated by Cameron J.A. in Attorney General of Canada v. [L. (G.)] 2004 SKCA 137 (CanLII): [17] The order was made in the exercise of discretionary power, fact that serves to narrow the basis for intervention on appeal: Only if the chambers judge abused his discretion by acting on some wrong principle, by disregarding some material matter of fact, or by failing to act judicially, is the Court of Appeal at liberty to interfere. Either that or the result must be so plainly wrong as to invite intervention on that basis: Rimmer v. Adshead, 2002 SKCA 12 (CanLII), [2002] W.W.R. 119. Also see Boston v. Boston, 2001 SCC 43 (CanLII), [2001] S.C.R. 413 at para. 73. [5] Applying this test to the impinged order we find that no such error has been demonstrated. Accordingly the appeal must stand dismissed. [6] The award of costs in Queen’s Bench that was challenged on this appeal must be affirmed for the same reason. [7] We cannot part from this case without observing that enormous resources have been expended by the parties in contest to determine where the child Danelle shall attend kindergarten for two days per week during seven week period before trial. We observe that the interest of the parties and their daughter Danelle would have been better served if they had devoted their time and resources to much earlier trial of this matter in Queen’s Bench. This action which was commenced in 2002 is finally proceeding to trial on February 21, 2005. While the order made may be of some inconvenience to the parties this does not constitute reversible error. [8] It is not our function to “fine tune” orders of this nature particularly when they are of such short duration. We have reviewed the voluminous affidavit evidence in the record and find no misuse of judicial discretion. The order under attack is considered attempt to manage the situation for short period before trial. [9] Furthermore, this Court has signalled its reluctance to interfere with the discretion of a chambers judge when dealing with matters of this nature. In Foss v. Foss (1991), 1991 CanLII 7937 (SK CA), 31 R.F.L. (3d) 367 (Sask. C.A.), Madam Justice Gerwing, speaking for the Court at p. 368 stated: Two general comments should be made with respect to this type of application. First, this Court is extremely reluctant to interfere with the discretion of chamber or trial judge with respect to questions of interim maintenance. Second, the most desirable thing in almost every instance is to proceed as rapidly as possible to trial so that the matter can be determined finally after full examination of all of the relevant evidence. Also see Lapoor v. Navidi (2000), 2000 SKCA 95 (CanLII), 14 R.F.L. (5th) 125. [10] We dismiss this appeal with costs on double Col. 5. [11] The respondent’s motion under Rule 15 is now moot. Accordingly it is dismissed as moot with no costs to either party. [12] Since we addressed the appeal proper on its merits, the motion to “quash” is dismissed as moot with no costs to either party.

The appellant appeals from an order that directed that the daughter of the parties shall attend kindergarten in Saskatoon during the 7 week period before trial. HELD: Appeal dismissed orally. 1) No error was demonstrated. 2) This Court has signalled its reluctance to interfere with the discretion of a chambers judge when dealing with matters of this nature.

6_2004skca168.txt

D.J. BROWN QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2018 SKQB 209 Date 2018 07 24 Docket: QBG 43 of 2015 Judicial Centre: Yorkton and GARRY PETRIE Counsel: David K. Rusnak, Q.C. for the applicant Jay D. Watson for the respondent JUDGMENT LAYH J. July 24, 2018 [1] Dan Ziola and Garry Petrie live approximately 15 miles from each other and have known each other for several years. As stated at the conclusion of the trial, in the court’s view, Mr. Ziola and Mr. Petrie are equally credible witnesses. They are equally sophisticated in business affairs and equally likely to take umbrage if anyone were to suggest they deliberately set out to deceive or manipulate another person in business transaction. Two reasonable and honest men can easily disagree on what one may have said to the other or what one meant when they said something to the other. Such circumstances have led Mr. Ziola and Mr. Petrie to become entangled in lawsuit respecting the sale of three quarters of land in the Rural Municipality of Hazel Dell. [2] In the fall of 2014, Garry Petrie and his wife wanted to retire after career in farming. Apparently none of their three daughters wished to take over the farm. Succession plans were different with Dan Ziola and his wife, Donna. Their son, Clarke, was keen to take over the Ziola farm and expand the farm operations by acquiring more land. [3] In November 2014 Mr. Petrie listed his farmland for sale on an online auction platform that his daughter, Jennifer Petrie, and her husband had created, intending to create an open bidding system to allow farmers to explore the market but not necessarily conclude with sale of land. Regrettably, notwithstanding the good intentions of the Petrie and Ziola families, their interaction through the bidding and post-bidding process has entangled them in three and one-half year disagreement, resulting in this lawsuit. [4] Mr. Ziola maintains that after the bidding process closed Mr. Petrie agreed to sell him three quarters of land; Mr. Petrie denies such deal was struck. Mr. Ziola has sued for specific performance and damages. Mr. Petrie has pleaded, in reply, that no agreement was created and, regardless, even if an agreement existed, it was not in writing as required by The Statute of Frauds, 1677, 29 Cha II, c 3 [Statute of Frauds]. [5] The parties have brought before the court the initial question of liability. Proof of damages will follow if the court finds that an agreement was created. Both parties agree that if an agreement was created it was breached. [6] Mr. Ziola states that the central issue in this lawsuit is the application of the Statute of Frauds to the land sale agreement. He states that contract was created and that it complied with the Statute of Frauds because the offer was in writing via the exchange during the internet-based land auction and the acceptance was orally communicated via telephone conversation. Mr. Ziola states that all the requisite elements of valid land sale are present. [7] Mr. Petrie refutes the creation of any contract. Additionally, if contract was created, Mr. Petrie states that the Statute of Frauds has not been satisfied. ISSUES 1. Was There any Agreement Respecting the Sale and Purchase of Land? The Burden of Proof [8] As the plaintiff, Mr. Ziola must prove on balance of probabilities that contract existed between him and Mr. Petrie and that the formalities of the Statute of Frauds have been satisfied. Introduction: The Essential Elements of Contract Formation [9] Both parties agree that the requirement of writing under the Statute of Frauds is an additional requirement to the usual essential elements of valid contract. These elements include an intention to create legal relations, the presence of offer, acceptance, consideration and consensus ad idem. The Statute of Frauds is formalization requirement needed to make the contract enforceable. Compliance with the Statute of Frauds does not make an otherwise unenforceable contract enforceable, any more than non-compliance with the Statute of Frauds does not make an otherwise enforceable oral contract unenforceable. [10] Given these essential elements of contract formation, the court must make critical determinations of fact to decide whether or not contract respecting the sale and purchase of land was created between Mr. Petrie and Mr. Ziola. The Relevant Facts [11] The facts relevant to this inquiry play out in few days in mid-December 2014 and essentially are not in dispute, save for brief few words concluding telephone conversations between Dan Ziola and Garry Petrie on December 12 and December 14, 2016. What those words were, what they were intended to mean, and how they were received is at the heart of this lawsuit. [12] In December 2014, Garry Petrie’s daughter and son-in-law launched, with Mr. Petrie’s input, website called the Farmers Post, intended to connect sellers of farmland with interested buyers in type of “non-binding auction” to permit sellers to gauge interest in their land, seek out the best possible price and avoid the costs of realtor’s commissions if sale completed. Farmers Post explicitly provided the following terms and conditions of the bidding process: Sellers: You must have full intention of selling your property if reasonable offer is received with terms that can be agreed upon, but you are not obligated to sell to the highest bidder, or any bidder, if acceptable deal terms cannot be negotiated. While Farmers Post introduces you to potential buyers, we accept no responsibility for verifying the bid or for ensuring the deal closes it is up to the buyer seller to negotiate all terms and close the deal with proper legal counsel. Note: you are free to advertise your items with any other service or agent, but you must notify this third party of your cross-listing on Farmers Post. Buyers: You must have full intention of buying the item at the price you bid, and have sufficient funds to make reasonable deposit (amount timing to be agreed upon with the seller). By making bid, you agree to let Farmers Post share your contact information directly with the seller and the seller is free to contact you about your offer. [13] Clarke Ziola read these terms and conditions of Farmers Post. The Ziolas did not question or criticize how the bidding would unfold. [14] Mr. Petrie’s land was the first implementation of the Farmers Post platform. He listed 17 quarters of land for sale, including six quarters of relevance to this action within the Rural Municipality of Hazel Dell, namely: a. three adjoining quarters, namely the SE, SW and NE 30-36-9 W2 [Subject Quarters]; b. the NW 30-36-9 W2 and its north-adjoining quarter, SW 31-36-9 W2 [Adjacent Quarters]; and c. the SW 19-36-9W2 [Unsold Quarter]. [15] To bid on Mr. Petrie’s land, Mr. Ziola registered for Farmers Post account. In response to the listing, and over the course of the bidding period that ended at 11:59 pm on December 11, 2014, Mr. Ziola bid on each of the above parcels. At the end of bidding, Mr. Ziola had the highest bid on the Subject Quarters and the Unsold Quarter. Although Mr. Ziola had previously stated in the comments section of the bidding solicitation “Gerry we want all five! Ziolas,” (consisting of the Subject Quarters and the Adjacent Quarters) he discontinued bidding on the Adjacent Quarters because he felt they had become overpriced. Other bidders continued to bid on the Adjacent Quarters after Mr. Ziola withdrew from bidding, including Mr. Cawkwell and Mr. Elmy. At the end of bidding, Mr. Ziola was the highest bidder on the Subject Quarters at $625,000.00. He was not the highest bidder on the Adjacent Quarters respecting which he had bid $375,000.00 before he stopped bidding. (Although Mr. Ziola was the highest bidder respecting the Unsold Quarter, Mr. Petrie would later explain to Mr. Ziola that he had chosen not to sell the Unsold Quarter and no issue has arisen respecting the Unsold Quarter.) [16] At 11:59 pm., December 11, 2014 the bidding ended. Mr. Ziola received an automated email message from Mr. Petrie. It stated, “[t]he seller will contact you within 48 hours if the seller wishes to accept your bid(s).” No mention was made of the method by which Mr. Petrie would “contact” any of the bidders. [17] After midnight, early in the morning of December 12, Garry Petrie consulted with his two daughters via Skype. They were in the Cayman Islands. Principally, he spoke to Jennifer, who testified at trial. Because the website stated to sellers, “you are under no obligation to sell to the highest bidder, or any bidder,” Mr. Petrie had to decide whether to pursue sale given circumstances he considered significant. As Farmers Post advised sellers, “Farmers Post sends you the name contact information for each bidder on your listings and it’s up to you to directly negotiate with your choice of bidders.” As Mr. Petrie and Jennifer Petrie testified, the nature of their lengthy consultation was to determine with whom, among the various bidders, sale negotiations might proceed. They identified certain issues, setting the stage for the conversation Mr. Petrie would instigate with Mr. Ziola later that morning. Those issues included concern about the Unsold Quarter, which, if sold, would sever it from the home quarter respecting which they had received no bids. They also had concerns about separating the Adjacent Quarters from the Subject Quarters because of issues of accessibility if the two blocks were owned by different individuals. [18] Given their concern about the accessibility of the Adjacent Quarters if separated from the Subject Quarters, and because Mr. Ziola had previously stated keen interest in acquiring all five quarters, Mr. Petrie and his daughter decided that Mr. Petrie would telephone Mr. Ziola and give him two options [the Package Offers]. [19] As the first option, Mr. Petrie would sell to Mr. Ziola all five quarters (the Subject Quarters and the Adjacent Quarters) for $1,050,000.00. This price was five percent higher than Mr. Ziola’s highest bid of $625,000.00 on the Subject Quarters and the bid of $375,000.00 that Mr. Ziola had last bid on the Adjacent Quarters. Characterized another way, this price was $5,000.00 higher than the total of Mr. Ziola’s bid on the Subject Quarters and the highest bids of $185,000.00 and $220,000.00 that Mr. Petrie had received on the Adjacent Quarters from other bidders. [20] As the second option, Mr. Petrie would sell to Mr. Ziola the Subject Quarters plus the NW 30-36-9 W2 of the Adjacent Quarters for $840,000.00. [21] Mr. Ziola produced records of the time of telephone calls he and Mr. Petrie exchanged on December 12, 2014. At 8:45 am Mr. Petrie telephoned Mr. Ziola and laid out the Package Offers in conversation that lasted five minutes. In their respective testimonies, both Mr. Ziola and Mr. Petrie clearly understood the terms of the Package Offers. However, as this call was ending, Mr. Ziola asked Mr. Petrie question. Mr. Petrie gave brief answer, the content of which is the sole point of material factual dispute between the parties. [22] Mr. Ziola testified that at the end of the conversation he wanted to be “absolutely sure” that regardless of his response to the Package Options, he would be able to buy the Subject Quarters for $625,000.00. Mr. Ziola testified that he was absolutely sure of his understanding with Mr. Petrie: the Package Options would not prevent Mr. Ziola from purchasing the Subject Quarters for $625,000.00. When asked in examination-in-chief whether he had any concerns whether he would be able to buy the Subject Quarters, Mr. Ziola testified he had none because Mr. Petrie said “we had them.” [23] Mr. Ziola had the telephone on speaker mode so that Mrs. Ziola could hear the conversation. Mrs. Ziola confirmed that she, too, understood that minimally the Ziolas would be able to buy the Subject Quarters even if they rejected the Package Offers. [24] Mr. Ziola interpreted the first telephone conversation as Mr. Petrie’s willingness to accept his bid of $625,000.00 on the Subject Quarters. According to Mr. Ziola, Mr. Petrie also offered to Mr. Ziola two more independent offers that Mr. Ziola could accept and if Mr. Ziola accepted either of these two offers to buy four quarters for $840,000.00 or five quarters for $1,050,000.00 then either of the newly accepted offers would replace the agreement respecting the Subject Quarters. In his brief of law, this is how Mr. Ziola’s counsel characterized Mr. Ziola’s understanding at the end of the first telephone conversation: 11. Within 48 hours of the end of the bidding process, Garry [Petrie] contacted Dan [Ziola] via telephone. During this phone call Garry made offers for Dan to purchase two additional quarter sections on which Dan had been outbid during the online auction process. Dan informed Garry that he would need to discuss this with his son, Clarke. Dan was aware that he was the high bidder on the Subject Land. Dan was also aware of the email message he had received earlier that morning at 2:29 a.m., which stated the seller would contact him within 48 hours if he wished to accept Dan’s bid. [TAB 13 of Joint Book of Exhibits]. Dan and Donna Ziola testified that, during this phone call with Garry, with respect to Dan’s offers on the Subject Land, Dan told Garry it needed to be perfectly clear whether he “had” the three parcels of land. Dan and Donna both deposed that Dan asked Garry if he “had the 3” even if he did not purchase the additional parcels of land, to which Garry responded “yes”. Dan testified that he had no concerns at the end of the phone call because Garry had told him he had the three quarter sections. [25] Mr. Petrie takes different view of that crucial first telephone conversation. He states that he declined to accept Mr. Ziola’s offer on the Subject Quarters as separate sale until he heard back from Mr. Ziola respecting the Package Options and then he would decide whether or not he would sell the Subject Quarters. That was the nature of the discussion he had had with Jennifer. Mr. Petrie states that the Package Offers were counteroffer to Mr. Ziola’s bid respecting the Subject Quarters. Mr. Petrie states that he either misunderstood or misheard Mr. Ziola’s final question about the Subject Quarters or Mr. and Mrs. Ziola misunderstood or misheard his answer to their question. Mr. Petrie denies that he gave any assurance that the Subject Quarters were sold to Mr. Ziola regardless of Mr. Ziola’s response to the Package Offers. He testified that he did not accept any offers to purchase respecting the Subject Quarters and only presented counter-offers to Mr. Ziola that morning. He testified that his response to Mr. Ziola’s question was “not at this time,” or “not yet,” and that his intention was to require Mr. Ziola to respond to the Package Offers before any consideration might be given to selling the Subject Quarters on their own. [26] At the end of this first telephone conversation, little did Mr. Ziola and Mr. Petrie know that the stage had been set for this lawsuit. [27] During the conversation with Mr. Petrie, Mr. Ziola told Mr. Petrie that he would have to speak to Clarke since the land was for Clarke’s farming operation. When Mr. Ziola asked Mr. Petrie when he should call him, Mr. Petrie said he would expect call from Mr. Ziola that evening. [28] After his conversation with Mr. Petrie, Mr. Ziola telephoned Clarke at 8:57 am. Clarke was on his way to Saskatoon with his then-girlfriend (now his wife). Their discussion focused on whether they should accept either offer within the Package Offers. Mr. Ziola testified that Clarke asked him whether or not they were assured that they could buy the Subject Quarters in the event that they chose not to buy the Adjacent Quarters. Mr. Ziola testified that he told Clarke that Mr. Petrie assured him that the Subject Quarters were theirs, regardless. Mr. Ziola and Clarke Ziola decided that the Adjacent Quarters were too highly priced and they wished only to buy the Subject Quarters. This call lasted approximately 25 minutes. [29] Mr. and Mrs. Ziola were planning to go to Moose Jaw that Friday. So, although Mr. Petrie told him he could call in the evening about the Package Offers, he called Mr. Petrie at 10:06 am. The call was brief, lasting four minutes and 42 seconds. Both Mr. Ziola and Mr. Petrie agree that Mr. Ziola clearly stated that he would not be accepting either of the Package Offers that much is certain. Mr. Ziola offered to bring to Mr. Petrie the appropriate deposit respecting the purchase of the Subject Quarters. But at this point, yet again, critical divergence arises respecting the significance of the remaining conversation. Mr. Ziola testified that in response to his willingness to immediately bring the deposit, Mr. Petrie told him to “hold off.” However, Mr. Ziola points out that Mr. Petrie’s response did not indicate that holding off on the deposit meant he was not accepting the offer on the Subject Quarters, as one might have expected him to say. Mr. Ziola did not take Mr. Petrie’s comment to “hold off” as indicative that there existed no agreement respecting the Subject Quarters, but merely that there was no urgency in receiving the deposit. Mr. and Mrs. Ziola then left for Moose Jaw. [30] Mr. Petrie takes different view of this second telephone conversation, not surprising difference if he and Mr. Ziola were already at odds in the interpretation of the first telephone conversation. Mr. Petrie states that during this conversation he and Mr. Ziola did not discuss the purchase of the Subject Quarters, but only that Mr. Ziola was not interested in the Package Options and was prepared to immediately bring the deposit on the Subject Quarters, to which Mr. Petrie replied “not at this time.” To Mr. Petrie, “not as this time” meant he was not prepared to accept the $625,000.00 bid on the Subject Quarters. [31] One might have expected that when Mr. Ziola told Mr. Petrie that neither of the Package Offers was acceptable and when Mr. Ziola offered to bring the deposit on the Subject Quarters, they would have inquired further and identified any misunderstanding. However, they blithely moved forward and this the court accepts Mr. Ziola believing he had purchased the Subject Quarters and Mr. Petrie believing that, since the Ziolas had rejected both offers, he had yet to decide whether he would accept Mr. Ziola’s bid on the Subject Quarters. [32] After the second call on Friday morning, three days passed without any action by either party. Then, on Monday, December 14 Mr. Petrie emailed Mr. Ziola stating, “I won’t be accepting you [sic] bid in the land on section 30. Thank you for participating in the sale. [33] Clarke was at his parents’ house that morning and read the email. Perplexed, he initiated call to Mr. Petrie, reaching him either that day or the next. According to Clarke’s testimony, Mr. Petrie apologized that the Ziolas did not get any of his land and told him that he had received better offer from someone else. The Analysis Was Contract Created Between Mr. Ziola and Mr. Petrie? [34] The court must determine whether a contract was created between Mr. Petrie and Mr. Ziola respecting the Subject Quarters. The court must first find, as matter of fact, what was the content of the telephone conversations at 8:45 am and 10:06 am on December 12, 2014 between Mr. Ziola and Mr. Petrie. Then, having made this factual determination, the court must decide the legal characterization of these telephone conversations question of law. [35] What did Mr. Ziola and Mr. Petrie say during the two seminal telephone conversations? This determination is the initial and critical starting point. As Professor M.P. Furmston stated in Cheshire, Fifoot and Furmston’s Law of Contract, 14th ed (New York Oxford University Press, 2017) [Cheshire] at 134: If the extent of the agreement is in dispute, the court must first decide what statements were in fact made by the parties either orally or in writing. If the contract is wholly by word of mouth, its contents are matter of evidence normally submitted to judge sitting as jury. It must be found as fact exactly what it was that the parties said…. [36] But it is not only the words that Mr. Ziola and Mr. Petrie might have exchanged that will decide whether their conversation created contract. Geoff R. Hall in Canadian Contractual Interpretation Law, 2d ed, (Markham LexisNexis Canada, 2012) explained at page that words must be considered in context. He wrote: Accuracy in interpretation requires consideration of two things, namely the words selected by the parties to set out their agreement, and the context in which those words have been used. Words and their context, therefore, are the primary theme of the law of interpretation of contracts, and set the parameter for the interpretative exercise. Interpretation therefore involves search for meaning within the constraints of the words and their context. An ideal interpretation is one which accords with both. [37] Although the author states that both words and context must be considered in the interpretation of an existing contract, am of the view that whether or not contract was created may be equally dependent upon an examination of the words used and the context in which they were used. As one would expect, to initially determine whether or not contract has been created is rooted in the parties’ language. If the parties’ words are objectively clear, it may be unnecessary to go beyond the words. However, if the words are unclear or uncertain, then, just as in contract interpretation, the court can and should look to the context in which the parties’ words were used. In terms of contract interpretation, the Newfoundland Court of Appeal in Eco-Zone Engineering Ltd. Grand Falls Windsor (Town), 2000 NFCA 21 (CanLII) at para stated, “[R]arely is it truly possible to interpret document without any knowledge of the context and the parol evidence rule does not prohibit court from admitting evidence of contextual nature.” [38] At page 13, the author, Geoff Hall in Canadian Contractual Interpretation Law, explains that “there is always background to contract” and the factual matrix must be considered when interpreting contract. In support of this premise, the author refers to the statement in White Central Trust Co. (1984), 1984 CanLII 3002 (NB CA), DLR (4th) 236 (CanLII) at para 33 [White] as instructive: 33. …[I]n determining what was contemplated by the parties, the words used in document need not be looked at in vacuum. The specific context in which document was executed may well assist in understanding the words used. It is perfectly proper, and indeed may be necessary, to look at the surrounding circumstances in order to ascertain what the parties were really contracting about. [Emphasis added] [39] This logic applies with equal vigour to determining whether or not contract was created. Accordingly, it may be necessary to look at the surrounding circumstances of the bidding process and the two telephone conversations in order to ascertain whether contract was created. [40] By inquiring into the words used by Mr. Petrie and Mr. Ziola and the context in which those words were used, the court is not opening the door to considering evidence of what was actually going on in these men’s minds. What may have been meant by Mr. Ziola’s question and Mr. Petrie’s answer whether the two created contract respecting the Subject Quarters or did not is not subjective test; it is an objective test. Gerald H. L. Fridman, in The Law of Contract in Canada, 4th ed (Scarborough Carswell, 1999) at 16 and 17 [The Law of Contract], describes the objective test to be applied to determining whether contract was formed, stating: It is not what an individual party believed or understood was the meaning of what the other party said or did that is the criterion of agreement; it is whether reasonable man in the situation of that party would have believed and understood that the other party was consenting to the identical terms. ... [Footnotes omitted] [41] The Saskatchewan Court of Appeal in Tether Tether, 2008 SKCA 126 (CanLII), 314 Sask 121 [Tether], also cited the same author. At para 55 the court stated: Constantly reiterated in the judgments is the idea that the test of agreement for legal purposes is whether parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract. The law is concerned not with the parties’ intentions but with their manifested intentions. It is not what an individual party believed or understood was the meaning of what the other party said or did that is the criterion of agreement; it is whether reasonable man in the situation of that party would have believed and understood that the other party was consenting to the identical terms. [Emphasis added] [42] What was reasonably understood between Mr. Petrie and Mr. Ziola must be gleaned from the two telephone conversations they had on December 12, 2014. The germane portions of those telephone conversations were only brief minutes, probably even seconds, in duration. These snippets of conversation are all that possibly created contract of purchase and sale respecting $625,000.00 worth of farm property. Both men agree that in the first telephone conversation Mr. Petrie first explained that the offer respecting the “Unsold Quarter” would not be accepted. Then he detailed the two components of the Package Offer. These two topics, necessarily, must have taken the bulk of the five minutes, leaving what would turn out to be the most significant part of the conversation as very brief exchange. [43] The court finds as fact that Mr. Ziola did ask Mr. Petrie using words to the effect that, notwithstanding the Package Options, he “had the three.” However, neither these words, nor Mr. Petrie’s response, nor the surrounding circumstances prior to and after the telephone conversation lead the court to conclude that contract was formed. Several explanations might account for how things went wrong in the understanding between Mr. Petrie and Mr. Ziola, other than the inaccurate and dishonest testimony of any of the parties. Above all, the court accepts that Mr. Petrie, Mr. Ziola and Mrs. Ziola were truthful and credible witnesses. In this specific instance, the court is unwilling to ascribe to dishonesty, embellishment or frailty of memory, that which is explained by miscommunication or misunderstanding. Looking to the words exchanged and the context of the bidding process following Mr. Petrie’s conversation with Jennifer Petrie, the court finds that a misunderstanding could readily and objectively characterize the nature of the telephone conversations so that no consensus ad idem was ever reached between Mr. Petrie and Mr. Ziola. [44] Even if Mr. Petrie and Mr. Ziola each testified identically to the words that each used, each could easily have taken starkly different meaning from those words. In Cheshire, Professor Furstrom wrote at page 135; Of course, there may be no effective dispute as to what was said but still fundamental disagreement as to what it meant. [45] John D. McCamus, The Law of Contracts, 2d ed (Toronto Irwin Law, 2012) describes what happens when the court finds that the words and their context lead to misunderstanding between the parties. At pages 526-527 he describes misunderstanding as to contract formation as follows: misunderstanding occurs where one party is not clear about the correct meaning of term or terms of the agreement or where both parties understand the meaning of term or terms differently, neither understanding being, in the requisite sense, the correct meaning of the agreement. In case of misunderstanding the critical question is whether the parties have reached true consensus ad idem. [Emphasis added.] [46] Professor McCamus states that correctly identified misunderstanding prevents formation of an agreement. At pages 524 525 he writes: [T]here is broad consensus that there exists basic division between mistakes that prevent formation of the agreement, here referred to as “misunderstandings,” and mistakes concerning some matter relevant to the decision to enter the agreement, here referred to as “mistaken assumptions.” In some contexts, the two categories are referred to, respectively, as mistakes as to “terms” and mistakes as to “motive.” In cases of misunderstanding, the parties have failed to reach an adequate consensus ad idem. The parties may, for example, have different ideas about what the terms of the contract mean. There is, one might say, no genuine or true agreement between the parties. [47] Following are the reasons why the court finds that Mr. Petrie and Mr. Ziola failed to reach an adequate consensus ad idem respecting the sale of the Subject Quarters during the first telephone conversation on December 12, 2014. [48] First, at the end of the first telephone conversation, after Mr. Petrie had explained that he was not going to sell the Unsold Quarter and after he explained the details of the Package Options, Mr. Ziola asked if he still “had the three” if he did not accept either offer in the Package Options. The verb “to have” is vague at best. The question is, “What did Mr. Ziola ‘have’ if he did not accept either of the Package Option?” An objective observer, hearing the conversation, could reasonably understand that Mr. Ziola, person interested in purchasing land, was asking if he “had” purchased the Subject Quarters. On the other hand, an objective observer could just as reasonably understand that Mr. Petrie, person interested in gathering bids, was confirming that Mr. Ziola still “had” an effective (but unaccepted) bid on the Subject Quarters. The court accepts that in the brief question posed by Mr. Ziola and the brief response provided by Mr. Petrie, the two men were simply “not on the same page.” They were at cross-purposes, each purpose readily understandable, logical and without malice or deceit. [49] Second, to an objective observer, Mr. Ziola’s last inquiry must be considered in light of the entire telephone conversation. The court sees nothing in the conversation between Mr. Petrie and Mr. Ziola before Mr. Ziola posed his seminal question that suggests Mr. Ziola “had” an agreement for sale respecting any land. What Mr. Ziola “had” at the outset of the telephone conversation and during the telephone conversation was the highest bid on the Subject Quarters. Nothing said during the telephone conversation altered Mr. Ziola’s legal position as only being the highest bidder on the Subject Quarters, so that his concluding question whether he still had the three cannot objectively be seen as confirming an agreement for sale of the Subject Quarters. [50] Third, on an objective inquiry, why would Mr. Petrie have stood prepared to accept the bid on the Subject Quarters if he had seconds earlier provided two offers for different (and higher) price which included the same land? According to Mr. Ziola’s interpretation, at the end of the telephone conversation he had concluded an agreement for sale respecting the Subject Quarters but could walk away from that agreement and, instead, accept one of two other offers. The court finds that such an arrangement would have been extraordinarily unusual. Instead, the court finds that Mr. Petrie did not accept Mr. Ziola’s bid respecting the Subject Quarters but rather was presenting two counteroffers. Mr. Petrie would have been acting contrary to his own intentions to bind himself to the sale of the Subject Quarters while he waited for Mr. Ziola’s decision respecting the Package Offers. [51] Fourth, Mr. Petrie’s primary objective in inaugurating the online service of Farmers Post, and indeed the primary objective of anyone selling farm land using this service, was to explore the market to secure the highest possible price for farm land. In his counteroffers, Mr. Petrie offered land for sale, including the Subject Quarters, for an effectively higher price than Mr. Ziola’s offer of $625,000.00. Jennifer Petrie testified that she, her sister and Mr. Petrie had protracted Skype conversation during which they strategized how to maximum the price beyond what had been offered by either Mr. Ziola or the competing bids on the two Adjacent Quarters. To accept Mr. Ziola’s position would require the court to accept that Mr. Petrie had accepted an effectively lower price for the Subject Quarters while simultaneously offering to sell the same land for an effectively higher price. The court is unable to accept this logic. [52] Fifth, based on two findings of the court Mr. Petrie had reasonable expectation that Mr. Ziola would likely accept one of the counteroffers. First, the price in one counteroffer for the five quarters was only marginally over the highest bids Mr. Ziola had already offered respecting all five quarters. In offering to sell the five quarters for $1,050,000.00, Mr. Petrie was seeking $50,000.00 more than Mr. Ziola had previously bid on the five quarters, five percent increase. Second, given Mr. Ziola’s earlier and emphatic comment that he wished to purchase all five quarters, the counteroffer seemingly would have struck favourable chord with Mr. Ziola. The court accepts the testimony of Jennifer Petrie that she and her father were confident that Mr. Ziola would accept one of the counteroffers. see nothing in the evidence to suggest that Mr. Petrie was enticing Mr. Ziola with the counteroffers but simultaneously had accepted Mr. Ziola’s bid for different land at lower price. At best, Mr. Petrie agreed that if Mr. Ziola did not accept one of the counteroffers, Mr. Petrie would still consider Mr. Ziola’s bid respecting the Subject Land. [53] Sixth, the conversation between Jennifer Petrie and Mr. Petrie earlier that morning provides an important context to the words used during the telephone conversation. Jennifer testified that she and Mr. Petrie had strategized how to deal with matters of accessibility to the NW quarter of section 30 and how to maximum the price beyond what had been offered by either Mr. Ziola or the competing bidders on the two Adjacent Quarters. Either of the two counteroffers would alleviate the access problems that might arise and also maximize price, while at the same time accommodating Mr. Ziola’s previous statement that he wanted all five of the quarters and encouraging him to marginally increase his bid. [54] Having found no consensus ad idem was reached between Mr. Petrie and Mr. Ziola during the first telephone conversation, the court finds that the second telephone conversation did nothing to alter this finding. During that conversation, Mr. Ziola first told Mr. Petrie that he was unprepared to accept either of the offers within the Package Options. He then offered to bring the deposit for the Subject Quarters to Mr. Petrie who told him to hold off. An objective view of this exchange shows that the misunderstanding of the earlier telephone conversation tainted the perceptions of both Mr. Petrie and Mr. Ziola as to the meaning of what was being said and heard during the second telephone conversation. Such is nature of many misunderstandings. frame of reference, once established, is not easily altered. The court finds that Mr. Ziola reasonably believed that by stating his willingness to bring the deposit he was performing the contract of sale respecting the Subject Quarters. The court also finds that Mr. Petrie reasonably believed that he was telling Mr. Ziola that he was not prepared to accept his bid on the Subject Quarters and to hold off until he further considered his options. Again, in colloquial language, the two men were simply not on the same page; in legal language there was no consensus ad idem and, therefore, no contract. [55] Finally, as further support for the finding that the parties had reached no agreement at the conclusion of the two telephone conversations on December 12 is Mr. Petrie’s email of December 14. He stated he was not accepting Mr. Ziola’s bid and thanked him for participating in the sale. To accept Mr. Ziola’s characterization of this email as Mr. Petrie reneging on completed contract of sale would require the court to ascribe deceitfulness to Mr. Petrie. The court finds no evidence and is unprepared to cast this aspersion upon Mr. Petrie when benign and reasonable explanation is far more likely. The Statute of Frauds [56] As Justice Wilkinson explained in Tether, the formation of contract is dependent upon three lines of inquiry, all of which must be present. [62] In summary, there can be three distinct lines of inquiry. Firstly, was there “meeting of the minds”, or consensus ad idem, that was manifest to the reasonable observer. Secondly, was there consensus on all the essential terms of the agreement, for if material term is not resolved, and is left vague and imprecise, without the tools to refine it, the agreement is illusory and the parties are simply asking the court to make an agreement for them. Thirdly, did the parties make their agreement conditional upon, and subject to, execution of formal document. [57] Missing from Justice Wilkinson’s list in this action is consensus ad idem manifest to reasonable observer. Since the court has found that no contract was formed between Mr. Petrie and Mr. Ziola, the additional formality of writing – imposed by the Statute of Frauds rather than by the parties’ express condition – is not determinative. As stated earlier in this judgment, even if the requirement of writing was established, an otherwise unenforceable contract cannot be made enforceable only because it is in writing rather than oral. Conclusion [58] Mr. Ziola has not established on a balance of probabilities that he and Mr. Petrie were parties to a valid and enforceable agreement of sale respecting the Subject Quarters. His action is dismissed. [59] Given the results, the court orders costs in Mr. Petrie’s favour based on column two of the Tariff of Costs.

Contract Law – Sale of Land – FormationReal Property – Sale of Land – Oral Contract The plaintiff brought an action against the defendant for specific performance and damages. The plaintiff claimed that the defendant agreed to sell him three quarters of land. The defendant’s position was that there was no agreement and if there was, it was not in writing as required by The Statute of Frauds. The plaintiff made this application for a resolution of the initial question of liability as to whether an agreement was created and if it was, then proof of damages would follow. The plaintiff argued that a contract was created and that it complied with the statute because he made his offer in writing, via an internet-based land auction program, and the acceptance was orally communicated by a telephone conversation. Therefore, all the requisite elements of a valid land sale were present. The defendant had used a website to list 17 quarters of land for sale, including six quarters of relevance to the action. The website was intended to connect sellers of farmland with interested buyers in a type of “non-binding auction” to permit sellers to gauge interest in their land, find the best possible price and avoid realtor’s commissions if a sale were completed. The listing showed three groups of the farmland for sale, described as 1) three adjoining quarters (the subject quarters); 2) two quarters (the adjacent quarters) and 3) one quarter (unsold quarter). In his online comments to the defendant during the auction, the plaintiff said that he wanted all five quarters (the subject and adjacent quarters). The plaintiff bid on each of the above parcels and had the highest bid on the subject quarters, but that in itself did not guarantee the purchase under the terms of the online auction program. He stopped bidding on the adjacent quarters because he thought they were becoming overpriced. After the auction, the plaintiff consulted with family members regarding whether to pursue negotiations with any of the bidders. They discussed the problems that would occur if the subject quarters were separated from the adjacent quarters because the two blocks were owned by different individuals. The defendant then telephoned the plaintiff and gave him two package options for the sale, both of which resolved the identified problem by including the purchase of the adjacent quarters. The package options were to purchase the subject and the adjacent quarters for $1,050,000 (which was 5 percent more than the $625,000 the plaintiff offered for the subject quarters and his last bid of $375,000 on the adjacent quarters) or the subject quarters and one of the adjacent quarters for $840,000. At the end of the conversation, the plaintiff testified that he wanted to be sure that regardless of his response to the package option offers, he would be able to buy the subject quarters for $625,000. The plaintiff did not have concerns about the purchase because he said that the defendant told him that “we had them”. He believed that this indicated the defendant’s willingness to accept his bid on the subject quarters and that if he accepted either of the two options, then either of the newly accepted offers would replace the agreement respecting the subject quarters. The defendant’s interpretation of the conversation was that he declined to accept the offer on the subject quarters until he heard back from the plaintiff respecting the package options and then he would decide whether or not he would sell the subject quarters. He either misheard or misunderstood the plaintiff’s question about the subject quarters and denied that he gave any assurance that he would sell them to him regardless of his response to the package offers. The plaintiff called the defendant shortly after the first conversation and advised that he would not accept either of the package option offers but would immediately bring the deposit for the purchase of the subject quarters. The defendant told him to “hold off”. The plaintiff interpreted that to mean that there was no urgency regarding the deposit rather than that no agreement existed respecting the subject quarters. The defendant testified that he said he was not prepared to accept the deposit at this time, which meant that he was not prepared to accept the plaintiff’s bid on the subject quarters. Three days later, the defendant emailed the plaintiff and said that he would not be accepting the bid. The issues were: 1) whether a contract was formed; 2) if so, did the Statute of Frauds apply. HELD: The plaintiff’s action was dismissed. He had not established on a balance of probabilities that he and the defendant were parties to a valid and enforceable agreement of sale regarding the subject quarters. The court found with respect to each issue that: 1) there was no contract. In interpreting the words of the first telephone conversation and the context of the bidding process, using the standard of the reasonable bystander, there was no consensus ad idem between the parties. The second telephone conversation had done nothing to alter that finding. Both the plaintiff and the defendant reasonably believed different things; and 2) the Statute did not apply as there was no contract.

5_2018skqb209.txt

J. Date: 2002/01/18 Docket: S.H. No. 135399 IN THE SUPREME COURT OF NOVA SCOTIA [Cite as: Canada Life Mortgage Services Ltd. v. Leeside Estates Ltd. et al. and Canuck Holdings Limited et al., 2002 NSSC 030] BETWEEN: CANADA LIFE MORTGAGE SERVICES LTD., body corporate PLAINTIFF/DEFENDANT BY COUNTERCLAIM and LEESIDE ESTATES LTD., and BYUNG K. LEE of Kentville, Kings County, Province of Nova Scotia DEFENDANTS/PLAINTIFFS BY COUNTERCLAIM and CANUCK HOLDINGS LIMITED, CANUCK DEVELOPMENT SERVICES LIMITED, BRUCE CHRISTMAS, ANDREW COOKE, and CANADA MORTGAGE AND HOUSING CORPORATION DEFENDANTS BY COUNTERCLAIM HEARD BEFORE: The Honourable Justice David W. Gruchy (in chambers) PLACE HEARD: Halifax, Nova Scotia DATE HEARD: January 14, 2002 DECISION: January 18, 2002 (Orally) WRITTEN RELEASE: January 31, 2002 COUNSEL: John MacDonell and William Ryan, Q.C. for Canada Life Mortgage Services Ltd. Janet Stevenson for Leeside Estates Ltd. and Byung K. Lee Blair Mitchell for Canuck Holdings Limited, Canuck Development Services Limited and Bruce Christmas Barry Alexander for Canada Mortgage and Housing Corporation GRUCHY, J. (Orally): [1] The origin of this action was a mortgage foreclosure commenced by Canada Life Mortgage Services ("Canada Life") against Leeside Estates Ltd. and Byung K. Lee. According to the pleadings the defendants (and will refer to them collectively throughout this decision as "Lee", whether in their capacity as defendants or as plaintiffs by counterclaim) planned to construct an apartment complex at Kentville, Nova Scotia. Lee retained or became involved with Canuck Holdings Limited, Canuck Development Services Limited, Bruce Christmas and Andrew Cooke in the planning of the construction and financing of the project. Canada Life sought to insure the mortgage with Canada Mortgage and Housing Corporation (CMHC) through its mortgage insurance program. Lee also retained the services of Kentville lawyer R. Peter Muttart, Q.C. [2] The mortgage to Canada Life fell into arrears during construction of the apartment complex and Canada Life commenced this foreclosure action. Lee has defended the action on various grounds and has counterclaimed against Canada Life, CMHC, Canuck, Christmas and Cooke (collectively "Canuck"). Without getting into the fine points of the pleadings, Lee has essentially pleaded that Canada Life acted on appraisals negligently prepared, mishandled the advances on the mortgage and failed to abide by its contract with Lee, thereby unjustifiably increasing the liability of Lee. Lee denied (in his personal capacity) that he is mortgagor and denied liability as guarantor and in addition, has accused Canada Life of acting in such manner as to cause the failure of the project. [3] Lee's counterclaim against Canada Life and CMHC is for breach of contract, breach of fiduciary duty to Lee, or for negligence. Particularly relevant in the subject matter of this decision, Lee has claimed that Canada Life and CMHC, "by calculating, through their agent Christmas, the cost of the project in manner that was negligent, such that the costs calculated were one-half of the real anticipated costs known to Christmas (Canada Life) and CMHC, thereby knowing, without communicating that knowledge to Lee that the project would fail causing the assets to revert to (Canada Life) and CMHC through default, causing Leeside to lose its asset and Lee to be called on his guarantee". Lee has also claimed that Canada Life and CMHC breached their contract with Lee or their fiduciary duty to Lee "... by negligence in approving the calculations or representations of Christmas in circumstances where (Canada Life) knew or ought to have known that calculations or representations to have been blatantly inaccurate" and by "by approving mortgage loan financing for 100% of the cost of constructing improvements on the lands when (Canada Life) and CMHC knew, or ought to have known that the funds were insufficient for that purpose." Lee's claim against the other defendants by counterclaim includes negligent misrepresentation, breach of fiduciary duty, breach of contract, negligence. [4] Mr. Muttart acted for Lee in various legal aspects of the development. Initially Mr. Muttart defended Lee in the foreclosure action, but Lee is now represented by his present counsel. [5] In preparation for the trial the various parties convened the discovery of Mr. Muttart. will say more about this below. Certain disclosures were made by Mr. Muttart in the presence of all counsel, but the discovery was not completed and, am informed, only counsel for Christmas and Canuck conducted discovery. The discovery was discontinued due to lack of time. It is clear that the answers to certain questions put to Mr. Muttart were essentially left unresolved and certain other obvious questions not posed. [6] This application is made pursuant to Civil Procedure Rule 20.06 for an order requiring Lee to produce the following documents: 1. All documents pertaining to banking and financial services performed by the Toronto Dominion Bank or any predecessor or predecessor company from 1989 to 1997 for any one or more of Byung Lee or Mrs. J.K. Lee (in the case of Mrs. Lee, in respect of corporations or real property in which Byung Lee has beneficial interest), Canova Trading Limited, Leeside Estates Limited and Cankcorp.; 2. All documents pertaining to banking and financial services performed by the Royal Bank for Dr. Byung Lee or Mrs. J.K. Lee, (in the case of Mrs. Lee, in respect of corporations or real property in which Byung Lee has beneficial interest) Canova Trading Limited, Leeside Estates Limited and Cankorp; 3. All documents in the possession or under the control of the Canadian Food Inspection Agency and touching upon Byung Lee's exercise or performance of employment or professional responsibilities, regardless of when made or by whom made and whether with the Canadian Food Inspection Agency or with or under any predecessor agency or authority of the government of Canada; 4. All documents in the possession of or under the control of Peter Muttart, Q.C. former solicitor to the defendants pertaining to or obtained in the course of his representation of Byung K. Lee, Canova Trading Corporation, Leeside Estates and Mrs. J.K. Lee (in the case of Mrs. Lee, in respect of corporations or real property in which Byung Lee has beneficial interest) during 1995, 1996 and 1997. [7] Lee has objected to the timeliness of this application. They have referred particularly to Civil Procedure Rule 28.05(2) and (3) which reads as follows: 28.05(2) Any party who has filed notice of trial without jury and certificate of readiness pursuant to Subsection (1) of this Rule, or who has consented to the filing of such notice, shall not, after the filing of the notice, initiate or continue any interlocutory proceeding or form of discovery without leave of the court except discovery of expert witnesses within sixty (60) days of the issuance of the notice. (3) Leave of the court pursuant to Subsection (2) of this Rule shall be granted only in exceptional circumstances. [8] In view of subparagraph (3) it is necessary to examine the circumstances giving rise to this application. [9] On May 26, 2000 the parties appeared before Associate Chief Justice MacDonald at an appearance day and the defendants Canuck and Christmas were ordered to make application for further disclosure by August 21, 2000. Discoveries were to be completed by October 30, 2000. have no information directly before me in this application by way of explanation for any non-compliance. The parties, however, appeared before Justice Moir on October 26, 2001 and it was ordered that all discoveries were to be completed by December 21, 2001. The discovery of Mr. Muttart commenced on December 6, 2001. [10] see no exceptional circumstances which will justify granting the necessary leave to obtain the documents listed in paras. 1, and of the notice of this application. Counsel for Canuck has been aware of Lee's counterclaim and his position for period now approaching three years. Lee in his personal capacity and Mrs. Lee have been discovered and those discoveries were conducted many months ago. Counsel for Canuck has not advanced any information to this Court which would lead me to believe that there has been any exceptional circumstance which would justify leave to make the application for these particular documents. [11] In addition the documents sought appear to have at best tenuous relevance. While "fishing trip" in discoveries in Nova Scotia is permitted in certain circumstances (see Upham v. You (1986), 1986 CanLII 126 (NS CA), 73 N.S.R. (2d) 73 (N.S.S.C., A.D.)) the documents sought must touch upon matter relevant to the pleadings. do not see that the pleadings in this matter will justify or make relevant the documents sought. [12] The circumstances surrounding the documents requested in para.4 of the interlocutory notice are of different ilk. The discovery of Mr. Muttart was commenced within the time frame set by Justice Moir. Leaving aside the question of privilege for moment, the incomplete answers provided by Mr. Muttart or the incomplete information then available to Mr. Muttart appear to have taken the parties by surprise. After all, one of the purposes of discoveries is to root out and eliminate surprises. The circumstances surrounding the examination of Mr. Muttart were indeed exceptional and they give rise to my conclusion that such circumstances justify the entertainment this aspect of the present application. In doing so recognize that the trial is scheduled to commence in less than two months but the various defendants in the counterclaim have indicated to me that there remains sufficient time in which to address matters which may arise from positive decision. [13] Lee has submitted that the documents sought, and indeed all of Muttart's evidence, ought to be excluded on the basis that it is subject to solicitor-client privilege. Canada Life has agreed, and the other parties have not taken issue with the position, that prima facie the evidence of Mr. Muttart as the former solicitor of Lee is privileged. There are, however, other considerations arising from certain exceptions to solicitor-client privilege. STATE OF MIND [14] have mentioned above the portions of Lee's counterclaim which set forth the cause of action arising from negligent misrepresentation. Such plea raises the question not only of misrepresentation but also of reliance by Lee upon it. Reliance is state of mind. Linden's Canadian Tort Law (7th ed.) p.413 addresses this subject as follows: Today, the assumption-of-responsibility approach favoured by many academics appears to have been adopted by the House of Lords. In contrast, most Canadian cases subsequent to Hedley Byrne favoured the broader views endorsed in earlier editions of this book and did not insist upon an "undertaking" or something "equivalent to contract", as proposed by Lord Devlin. In Fletcher v. Manitoba Public Insurance Co., for instance, Madam Justice Wilson explained that duty of care would be owed if someone (i) relies on information, (ii) the reliance is reasonable, and (iii) the defendant knew, or ought to have known, that he or she could rely on the information. Madam Justice Wilson concluded in the case that the plaintiff was "neighbour", that the reliance was expected, and that compensation should therefore be awarded. Essentially, this is the approach endorsed by the Supreme Court in its most recent decision on point, Hercules Management Ltd. v. Ernst Young. As we shall see, as fuller understanding of the purposes of the special duty enquiry has developed over the years, there probably remains little difference in practice between the two approaches. [15] The requirements for negligent misrepresentation are clear, as Mr. Justice Iacobucci said in Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] S.C.R. 87 at p.110: The required elements for successful Hedley Byrne claim have been stated in many authorities, sometimes in varying forms. The decisions of this Court cited above suggest five general requirements: (1) there must be duty of care based on "special relationship" between the representor and the representee; (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making said misrepresentation; (4) the representee must have relied, in reasonable manner, on said negligent misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted. In the case at bar, the trial judge found that all elements were present and allowed the appellant's claim. [16] also note that at the time of the discovery of Mr. Muttart Lee's defence and counterclaim still alleged fraud (although at least aspects of it have now been withdrawn) on the part of the various defendants by counterclaim. Such an allegation would clearly bring into question the state of mind of the alleged victim of the fraud. [17] But will address the application on the present state of the pleadings. The state of mind exception to solicitor and client privilege was examined carefully and exhaustively in Lloyds Bank Canada v. Canada Life Assurance Co. (1991), 47 C.P.C. (2d) 157 (Ont. Ct., Gen. Div.). can do no better than to refer to paras. 14-32 of Madam Justice Van Camp's decision in that case where she addressed the question of whether "communications between the bank and its solicitors for the purpose of giving and receiving legal advice" ... "and communications between the bank or its auditors and communications between the bank or its auditors and the Inspector General of Banks" were privileged. Madam Justice Van Camp's decision is exhaustive and thorough and for the sake of brevity will not quote it at length. The headnote accurately summarizes the decision with respect to communications with solicitors as follows: "With respect to [this question], the defendants maintained that because the plaintiff pleaded that it had been induced by the defendants to make the loan and it had relied on the representations made to it by the defendants, they [the defendants] were entitled to all of the bank's knowledge of the relevant law and legal advice it had received with respect to the defendants' capacity to make commitments such as those contained in the comfort letters. There was not waiver of privilege in every instance where the state of mind of the person possessing the privilege was in issue. Privilege would not be waived where the person seeking disclosure of the legal advice raised the issue of reliance on legal advice. By pleading that the bank relied on the comfort letters, it waived its privilege and was to divulge whether it obtained legal advice before authorizing loan. Questions regarding legal advice or opinions provided to the bank on the security afforded by the comfort letters were to be answered. [18] In Allarcom Ltd. v. Canwest Broadcasting Corp. (1987), 1987 CanLII 2484 (BC SC), 19 B.C.L.R. (2d) 167 (S.C.), Justice Gibbs addressed the questions put to party designed "... to obtain disclosure of certain of the advice and opinions of the defendant's solicitor to solicit the opinions of the parties being examined on some of the provisions of an agreement, the construction of which is in issue in these proceedings, and to obtain the legal opinions of the parties being examined as to other disputes between various of the parties to this litigation." Justice Gibbs described the position of the plaintiff (at p.170) as follows: The plaintiff contends that, having put their state of mind in issue by pleading that they relied upon the plaintiff's conduct to their detriment, the defendants cannot now raise the barrier of solicitor-client privilege to prevent the plaintiff from showing that the defendants had advice and opinions which effectively negate the allegation of reliance upon the plaintiff's conduct. On the authority of the Court of Appeal in Rogers v. Bank of Montreal, (1985 CanLII 397 (BC SC), [1985] 61 B.C.L.R. 239) ... the plaintiff is on sound ground. Justice Gibbs continued to quote the British Columbia Court of Appeal in Rogers, starting at p.170: The issue in this case is not the knowledge of the bank. The issue is whether the bank was induced to take certain steps in reliance upon the advice from the receiver on legal matters. To take one instance, the receiver, according to the bank, advised the bank that it was not necessary to allow Abacus time for payment before the appointment of the receiver. significant legal decision had been rendered some months earlier to the opposite of that advice. The extent to which the bank had been advised about that decision, not merely of its result, is important in the resolution of the issue whether the bank relied upon the advice of the receiver. There do not appear to be any decided cases in Canada that raise the facts that we have in this case. Cases have been referred to us from jurisdictions in the United States and have found one decision in particular to be persuasive. refer to U.S. v. Exxon Corp., 94 F.R.D. 246 (1981), decision of the District Court of Columbia. At p.247, the judge said: Exxon has asserted the attorney-client privilege with respect to 395 documents sought by the government in interrogatories 9-19 and document requests and 2. In this motion to compel, plaintiff claims that these documents are not privileged because Exxon waived the attorney-client privilege by interposing the affirmative defense of good faith reliance on the government's regulations and communications. At p. 248: Most courts considering the matter have concluded that party waives the protection of the attorney-client privilege when he voluntarily injects into the suit the question of his state of mind. For example, in Anderson v. Nixon, 444 F. Supp. 1195, 1200 (D.D.C. 1978), Judge Gesell stated that as general principle 'a client waives his attorney-client privilege when he brings suit or raises an affirmative defence that makes his intent and knowledge of the law relevant.' And finally, at p. 249: Exxon's affirmative defences necessarily revolve around whether Exxon did, in fact, primarily or solely rely upon particular DOE regulation or communication when the company made its pricing decisions. Thus, the only way to assess the validity of Exxon's affirmative defenses, voluntarily injected into this dispute, is to investigate attorney-client communications where Exxon's interpretation of various DOE policies and directives was established and where Exxon expressed its intentions regarding compliance with those policies and directives. There is not other reasonable way for plaintiff to explore Exxon's corporate state of mind, consideration now central to this suit. Mr. Chaisson sought to distinguish that decision on the basis that the defence of good faith was one peculiar to the United States law. do not think that to be valid distinction. What underlines both that defence and the defence in this case is that the party claiming the privilege relied upon the advice, in one case of the government, and in the other case of the receiver, and, acting on that reliance, took certain steps. That necessarily involves an inquiry into the corporate state of mind of the bank when it was induced and decided to act. Nor do think that the law of solicitor-client privilege, as outlined by the Supreme Court of Canada in Descôteaux and Solosky is in this respect any different from the law that is expressed in U.S. v. Exxon and in other cases cited to us by Mr. Hordo. Justice Gibbs concluded by granting an order directing the witnesses to answer questions as to the advice and opinions received or given on what date was or was likely to be the expiry date under the agreement, and what action, if any, was taken to comply with that advice on those opinions. [19] Lee has cited Bell v. Smith, 1968 CanLII 17 (SCC), [1968] S.C.R. 664 and has quoted from the opinion of Spence, J. at p.671 as follows: Because the solicitor owes to his former client duty to claim the privilege when applicable, it is improper for him not to claim it without showing that it has been properly waived. Especially is this so when, as here, the circumstances are such as to make it most unlikely that waiver would be given. Also, because it is improper to induce breach of duty, have serious doubts about the propriety of putting to solicitor questions that involve the disclosure of confidential information without first bringing in evidence of proper waiver. In any case, because the client's privilege is duty owed to the Court, no objection ought to be necessary and the evidence in violation of the privilege should not be received. [20] As understand the situation giving rise to the examination of Mr. Muttart, prior to the examination Lee had expressly not waived privilege. Nonetheless, the arrangement was made whereby Muttart would present himself for examination in the presence of counsel, including Lee's counsel. The examination was then to proceed on question-by-question basis and apparently would be subject to specific objections by Lee's counsel. The discovery proceeded then without objection. In this factual situation I find that waiver may be reasonably inferred. [21] also refer to The Law of Evidence in Canada by Sopinka, Lederman and Bryant, 2nd ed., paras. 14.96 and following, especially paras. 14.96 and 14.97 as follows: 14.96 It was once thought that certain requirements should be established in order for waiver of the privilege to be established; for example, the holder of the privilege must possess knowledge of the existence of the privilege which he or she is forgoing, having clear intention of waiving the exercise of his or her right of privilege, and complete awareness of the result. But, as will be pointed out, other considerations unique to the adversarial system, such as fairness to the opposite party and consistency of positions, have overtaken these factors. 14.97 An obvious scenario of waiver is if the holder of the privilege makes voluntary disclosure or consents to disclosure of any material part of communication. Thus, the court in Frind v. Sheppard held that client had waived the privilege which attached to letters passing between himself and his solicitor because they had been read into the record in previous proceeding. In other cases, waiver was said to have taken place when documents over which privilege was claimed had been disclosed in proceedings in another jurisdiction or were referred to in an Affidavit of Documents and had been inspected. Similarly, if client testifies on his or her own behalf and gives evidence of professional, confidential communication, he or she will have waived the privilege shielding all of the communications relating to the particular subject-matter. Moreover, if the privilege is waived, then production of all documents relating to the acts contained in the communication will be ordered. find that in the circumstances as described to me and as appear from the portions of the discovery evidence submitted to me Lee has waived privilege. VOLUNTARY PARTIAL DISCLOSURE [22] Canuck has submitted for my consideration certain documents produced voluntarily by Lee, some of which contain handwritten notes by Muttart reflecting, apparently, advice given by Muttart to Lee. In Watkins v. Faught (1999), 179 N.S.R. (2d) 204 (S.C.) referred to some of the cases to which referred above and in final consideration said at para. [16]: Finally refer to Sopinka's The Law of Evidence in Canada where the learned author (as he then was) explored the notion of fairness in relation to solicitor-client privilege. Similarly, Sopinka and Lederman in The Law of Evidence in Civil Cases at p.182: Two essential elements must be present for waiver to be established. The holder of the privilege must possess knowledge of the existence of the privilege which he is foregoing and also clear intention of waiving the exercise of his right of privilege. Although waiver may be expressly given such cases are few. More frequent are those cases in which the waiver is by implication only. If the holder of the privilege makes voluntary disclosure or consents to disclosure of any material part of the communication, then there will be waiver. [23] Canuck argues that the disclosure of certain of the documents to which it has referred constitute partial disclosure. Regardless of whether those documents indeed constitute partial disclosure have concluded that the discovery as it was conducted by Canuck, in the absence of specific objection, constituted partial disclosure and need not concern myself as to whether the documents produced fell within that category. [24] It was clear in the circumstances that Lee knew of the privilege as it had been expressly addressed prior to the discovery and then by attending the discovery and in the absence of objection evinced an intention to partially waive it. [25] At p.666 and following in the first edition of Law of Evidence in Canada by Sopinka, Lederman and Bryant, the matter of waiver of solicitor-client privilege by implication is examined. The learned authors (at p.668) quote Professor Gary D. Watson as follows: It seems reasonably clear that the "fairness" test has emerged as the relevant principle for determining when solicitor and client privilege is waived by conduct in the course of the litigation. While the courts have not yet clearly embraced the view that the unilateral assertion of an issue by one party can lead to compulsory disclosure of the adverse party's solicitor-client communications, do not be surprised if the law moves in this direction; ultimately, the fairness test may be interpreted as meaning that solicitor-client privilege is waived whenever the communications between the solicitor and the client are legitimately brought in issue in the action. This observation by the learned author seems to reflect the same philosophy noted by Justice Van Camp in Lloyds Bank at paras. 33 and 34 as follows: Wigmore on Evidence Vol. (1961) at 635 defined what constituted waiver by implication as follows: "Judicial decision gives no clear answer to this question. In deciding it, regard must be had to the double elements that are predicated in every waiver, i.e., not only the element of implied intention, but also the element of fairness and consistency. privileged person would seldom be found to waive, if his intention not to abandon could alone control the situation. There is always also the objective consideration that when his conduct touches certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder. He may elect to withhold or to disclose, but after certain point his election must remain final." In Processors Ltd. v. Campbell Avenue Herring Producers Ltd., 1983 CanLII 407 (BC SC), 35 C.P.C. 146, [1983] W.W.R. 762, 45 B.C.L.R. 218 (S.C.) McLachlin J. said [C.P.C. pp. 149-150]: "In the cases where fairness has been held to require implied waiver, there is always some manifestation of voluntary intention to waive the privilege at least to limited extent. The law then says that in fairness and consistency it must be entirely waived." [26] The transcript of the discovery evidence of Mr. Muttart leads me to believe that he may have warned Lee of problems with the proposed development at certain point in time. That advice to Lee if timely may ultimately go directly to the core of Lee's defence and counterclaim. Fairness would dictate that such information be disclosed to Lee's opposing parties. [27] The terms of Mr. Muttart's retainer by Lee are not clear to me. The documentary evidence sought may possibly clarify those terms. In the event that Muttart's advice to Lee was outside the terms of his retainer then the advice may not have been within the solicitor-client privilege. In Lloyds Bank (above), at para. 28, Madam Justice Van Camp said: In an unreported decision dated February 26, 1990 Potash Corp. of Saskatchewan Mining v. Saskatchewan Government Insurance [now reported (1990), 1990 CanLII 7499 (SK QB), 83 Sask. R. 19 (Q.B.)] Barclay J. of the Saskatchewan Queen's Bench ruled against the privilege as the communications with the solicitor were not for the purpose of securing legal services; the business advice given was not by him in the course of his professional duties as solicitor. In the alternative he held that there had been waiver by the plaintiff placing its state of mind in issue. He held that the case before him was analogous to the case in Allarcom Ltd. [28] In the Potash case the terms of the solicitor's retainer clearly did not include the business advice he gave to his client. This finding appears to be very similar to Mr. Muttart's position when he responded to questions on discovery as follows at p.39: Q. Well, to come back, Mr. Muttart, it sounds like very significant event in your relationship with Mr. Lee? A. It was, but on the one hand it was none of my business. My business was to give him legal advice, and this was actually quite outside my territory and hesitated very much to express the caution that did express. Q. And what made you hesitate to express that caution? A. Well because it wasn't any of my business. He chose whom he wanted to be in business with and that wasn't in my field whatsoever and so felt strongly enough about it that expressed my opinion. That's unusual enough in itself. Q. Okay. Now I'm going to assume that these events were fairly significant to you as Mr. Lee's lawyer whenever they occurred, is that fair to say? A. No, again you can assume what you wish, but what we've talked about is essentially two events. One was my concerns over the fact that the tail seemed to be wagging the dog. That was concern that was in essence none of my business, and whatever business relationship these people wanted to have was entirely up to them and indeed had already been forged. was simply questioning to determine whether anybody wanted to revisit it and it was clear that they didn't and so we moved on. CONCLUSION [29] On the basis of these various grounds I am prepared to order disclosure. TERMS OF ORDER [30] The extent of the production sought in this application is too broad. The production ordered will be Mr. Muttart's documents which relate to:(a) the terms of Mr. Muttart's retainer;(b) the content of Mr. Muttart's advice given to Lee and the timing of that advice with respect to:(i) the alleged failure by the plaintiffs and defendants by counterclaim to comply with the terms of a "commitment letter" as alleged by Lee, or any other perceived failure to comply with the terms of a contract as alleged by Lee; and(ii) any of the other allegations contained in para. 2 of the counterclaim herein. [31] During Mr. Muttart's discovery he referred to two "events" when he may have warned or questioned Mr. Lee about the transaction in question and in particular Mr. Lee's business relationship with Mr. Christmas. direct that Mr. Muttart shall release any narrative within his accounting records which bear upon the timing or content of that advice, but not including any of the financial details of Mr. Muttart's professional services rendered to Lee.

The borrower in a mortgage foreclosure action counterclaimed against the lender and joined the insurer of the mortgage and experts he had retained for advice in the development on the basis of negligent misrepresentation. During discovery of the borrower's former solicitor it was revealed that the solicitor may have given the borrower a warning that the financing arranged was inadequate. No privilege was claimed during the discovery process. The defendant brought an application for production of the solicitor's files and a copy of the borrower's employer and bank records intended to show his familiarity with business and financial affairs. Application allowed in part; solicitor's files with respect to terms of solicitor's retainer and non-legal advice or services are to be produced; employer's and banker's records not to be produced. The claim of negligent misrepresentation raised the question of reliance; evidence of knowledge would go to the borrower's state of mind and the solicitor's warning, if timely, would be relevant. The conduct of the borrower's present counsel in making no objection at the discovery amounted to waiver. There were no special circumstances existing with respect to the employer's and bank's records; the applicant made no effort to obtain the records until too late and the documents would have little, if any, relevance.

c_2002nssc30.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Chiasson v. Chiasson, 2006 NSSC 139 Date: 20060508 Docket: SFPAD-036016 Registry: Port Hawkesbury Between: Lise Chiasson Petitioner v. Jamie Chiasson Respondent Judge: The Honourable Justice Moira Legere Sers Heard: January 24, 2006; February 23, 2006; March 22, 2006 Written Decision: May 8, 2006 Counsel: Elizabeth Cusack, Q.C., for the Applicant Duncan MacEachern, for the Respondent By the Court: [1] Lise Chiasson commenced divorce proceedings on November 30, 2004.She sought custody, access, child support, spousal support and division of property, in accordance with the Separation Agreement entered into between herself and the Respondent, Jamie Chiasson, dated August 30, 2004. She also seeks costs [2] On December 15, 2004, Mr. Chiasson filed an answer and counter petition seeking custody, access, child support, spousal support and costs with division of property. [3] He seeks a variation of the provisions regarding child support and spousal support. It is his position that the particulars of the agreement did not and do not now reflect his net business income derived from self employment. He seeks an increase in access. [4] Ms. Chiasson lived in the Cheticamp area since August of 1997. The parties began living together on October 31,1998. The parties were married on June 3, 2000 at Cheticamp, Nova Scotia and ceased living together on June 19, 2004. [5] The Petitioner was born on March 29, 1978 and the Respondent on February 28, 1977. They are 28 and 29 years old respectively. [6] She has currently returned to live with her family in Moncton, New Brunswick. [7] Their child Remi Marcel Chiasson, born April 28, 2003, is currently in the joint custody of both parents; in the day to day care of the mother with interim access arrangements between the parties. [8] am satisfied that all jurisdictional elements have been proven. There is no possibility of reconciliation between the parties. grant the divorce in accordance with Section 8(1)(2)(a) of the Divorce Act. [9] The parties have deferred the issue of custody and access while they attempt to work out transitional issues with Doctor Landry. In the event that they are not able to work out the transitional issues they will refer the matter back to this court for final resolution of the custody and access hearing. [10] Before me are the issues of spousal support, child support and division of property. Separation Agreement [11] On the 30 and 31st day of August the parties entered into Separation Agreement. Both parties were represented by counsel. [12] That agreement purported to settle all matters between the parties and was to be incorporated into and form part of the Corollary Relief Judgement in this matter. [13] The Separation Agreement has become an issue that requires review. Ms. Chiasson believes that the court should incorporate the Separation Agreement as reflecting their true financial circumstances and valid agreement between the parties entered into after consultation with counsel. [14] Mr. Chiasson believes that the Separation Agreement was entered into to assure himself that his child would not be removed from his home town. He believed the agreement of joint custody would limit her mobility. In return he was prepared to give her his equity in the home and possessions and guarantee her enough money per month to ensure she remained in the matrimonial home with his son. [15] He confirmed she wanted Quit Claim deed to the home. As he had no intention of living there, he was prepared to sign his interest over to her to keep his son in the Cheticamp area. [16] He acknowledges that he had the advantage of counsel and admits he had instructed his counsel simply to draft an agreement in accordance with the terms and conditions he and Ms. Chiasson previously agreed upon. (a) In that agreement the husband and wife were to share joint custody. At the time of the agreement the wife was living in Cheticamp and the parties agreed that she should have to day to day care of the child and that the husband should participate in and be involved in all major decisions affecting the child of the marriage. (b) The parties agreed that the husband would be provided timely information from all schools and medical service providers regarding any status reports as result of their involvement with the child. (c) The parties agreed that he should have access to the child on alternate weekends from 4:00 p.m. on Saturday until 4:00 p.m. on Sunday commencing August 7, 2004 and otherwise he should have regular access at reasonable times with reasonable notice. (d) The husband agreed to pay child support of $495.00 per month on the 1st of the month commencing August 1, 2004. They agreed that this was based on the husband’s gross annual income of $60,000.00. (e) The husband also agreed to pay her any expenses incurred from prescription drugs, clothing, school supplies and sporting equipment. (f) The husband also agreed to pay $600.00 per month for spousal support for the his wife for period of 15 years or until she married or lived in common-law relationship, which ever came first. (g) The husband agreed to Quit Claim his interest in the matrimonial home located at 12784 Cabot Trail, Grand Etang, in the County of Inverness, Province of Nova Scotia, in consideration for the wife assuming responsibility for the mortgage. He also agreed to release to the wife all his interest in the contents of the home. (h) The husband retained the 2003 Ford motor vehicle and the 2002 Honda Four Wheeler. The wife retained the 1999 Ford Taurus. (I) The husband agreed to maintain the wife as the beneficiary on the National Life Insurance for the child until the child reached 18 years of age. (j) The husband assumed responsibility for all loans with respect to the motor vehicles in his name and the wife the responsibility for the mortgage in the amount of $47,461.00. [17] There are number of factors that are relevant in this review. The parties concluded their agreement little over months after the separation on June 19, 2004. [18] There have been significant changes in the life of the parties since that time. If the Separation Agreement itself stands, there are significant changes that have occurred since the signing of the agreement that allow the Court to review at least custody, access, child support and spousal support. The question is; to what extent should the Court intervene if at all in the division of property? [19] The father indicates that there was always an undercurrent, threat that the mother would leave the jurisdiction with the child unless the terms of the agreement were satisfactory to her. This agreement clearly favours the mother. The father agreed to the terms in order to keep his child in the jurisdiction. [20] The mother maintains that she did not ever hold out the possibility or threat that if her demands were not met she would leave the Cheticamp area and return to Moncton with her family. [21] There was also side agreement unknown to the Respondent and to Ms. Chiasson’s lawyer), between Ms. Chiasson and the paternal grandparents. [22] Mr. Chiasson obtained his qualifications as certified electrician after completing one year course in Sydney, Nova Scotia, in the fall of 1995. He became journeyman electrician in the year 2000. Between 1996 to 2000 he worked as an apprentice for Robin Jones and Whitman in Cheticamp. After working there for years he left in August of 2000 and became self employed. He remains self employed today. [23] The Petitioner completed High School in Moncton New Brunswick. She completed courses at Collège de l’ Acadie to qualify as Continuing Care Assistant/Worker between 1997 and 1998. She completed upgrading in that field in 2004 and worked in this field for more than years. This type of work draws an income of $14.00 per hour according to the Petitioner. [24] She completed one semester of courses for bilingual secretary at the College de lÁcadie in 2001. [25] When Mr. Chiasson met Ms. Chiasson in 1997 she was employed and continued to be employed until the birth of her child. [26] Between 1998 and 2000 she worked as Teacher’s Aid. Ècole N.D.A., Cheticamp. Between February 1998 to June 2002 she also worked part time in casual position as continuing care assistant for the Cheticamp Association for Community Living She was paid $13.70 an hour. [27] Between October 2002 and April 2003 she worked part time as research assistance for Collège de lÁcadie. Between May 8, 2004 and June 15, 2005 she also worked as bookkeeper -salesperson for Chiasson Furniture Store owned by her parents-in law)They employed her 14 weeks per year and additional weeks while on EI. She work weekends and some evenings while she was still in training as C.C.W. [28] In addition and briefly the Petitioner worked at the Harbour Restaurant and the Cabot Trail Chalet’s. [29] The Petitioner worked in Small Options, resigned her position, went on unemployment in the Fall of 2002 until she began her maternity leave when Remi was born April 28, 2003. [30] From the Fall of 2002 up to her maternity leave she had been working at project sponsored by Human Resources at the College De L’Acadie. [31] year later when her maternity leave expired in the Spring of 2004 she commenced work for Chiasson Furniture beginning in the Spring of 2004 with her final day of work on May 31, 2005. She experienced periods of lay off during the winter and the spring. [32] The parties resided in rental property in the Cheticamp area until they purchased new home in Grand Etang in 2001. They lived in that property together from June of 2001 to June of 2004. [33] They purchased their home for approximately $45,000.00. They completed significant improvements including new vinyl windows, two vinyl doors, reconditioned roof, land scaping, moving some internal walls painted, installed new flooring, bathroom, new counter top. [34] They purchased all new furniture including bedroom furniture, appliances, living room furniture. The home contained new water heater, new water pump system, circuit breakers, etcetera. [35] The couple benefited from the generosity of their parents receiving financial assistance from both sets of parents. The Petitioner’s father contributed $5,000.00 and the Respondent’s father originally contributed at least $10,000.00. Some of the $5,000.00 contributed by the Petitioner’s father paid off the Respondent’s father. [36] The Respondent’s father owns furniture and appliance store. They benefited from this when they purchased and furnished their home. [37] They also benefited because they were able to bartered labour to complete renovations on their home. They received assistance from family and friends. They, their parents, their relatives and friends assisted in the renovations each doing what they were qualified and able to do. [38] When the parties separated the primary focus of the father and his family was to ensure that the couple arrived at an arrangement that was geared to guarantee that the child Remi would remain in the area. [39] The Petitioner and Respondent negotiated their own terms. It had to have been clear to all parties that the primary goal was to give sufficient money to keep the mother in the matrimonial home and to sustain her with the child to ensure that the child remained in the Cheticamp area. [40] The agreement as drafted reflected the parties discussions. The mother and father concluded in their initial discussions she would need approximately $1,100.00. to stay in the home and maintain herself and the child. [41] Mr. Chiasson took that agreement to lawyer and had an agreement drafted. Ms. Chiasson obtained counsel and sought to change the terms to receive $1,600.00. This was beyond what Mr. Chiasson felt he could manage. He informed his parents that it was not realistic to attempt to pay more money to meet this demand. [42] The Petitioner went to see the paternal grandparents with her concern that she could not survive on the $1,100.00 per month payment. [43] Her father-in-law and Ms. Chiasson agreed to private deal of $500.00 month topping up the $1,100.00 to meet the $1,600.00 demand. Mr. Chiasson and the lawyers drafting the agreement were unaware of this private arrangement. [44] The grandparents paid $500.00 to the Petitioner from August 2004 to June 2005, They also provided her with Blue Cross Plan while she was employed at their store. [45] Ms. Chiasson signed the Separation Agreement and the parties commenced living separate and apart in accordance with the terms of the agreement. [46] This agreement gave the mother their newly renovated home and all it’s contents, $1,600.00 per month and all future equity. [47] The ongoing relationships broke down, both parties were in relationships with other individuals and ultimately the Petitioner left her employment with the Respondent’s family in May 2005 and decided to move to Moncton to enter University. She applied in May and was accepted in June 2005. [48] She made an interim application to take the child with her to Moncton. [49] When this was announced the $500.00 paid by the grandparents stopped. [50] The Petitioner testified that at no time was there any threat by her to remove the child from the jurisdiction if the grandparents or the Respondent did not meet her demands. [51] It is clear that there were discussions about her need to have sufficient funds to stay in the Cheticamp area. It had to have been clear that the primary driving focus of the Separation Agreement was to keep her and more importantly her son in the Cheticamp area. [52] do not accept that it was never spoken reality. It had to have been discussed and was clearly implicit if not explicit in the final negotiations. [53] The Petitioner’s former lawyer testified and confirmed that he discussed with her the issue of mobility before signing the agreement. He confirmed that the parties had come to their lawyers with an agreement already largely worked out between them. The amount of support he said had been previously agreed upon. She was discussing with her lawyer how to remove Mr. Chiasson from the mortgage. [54] Her lawyer wanted to confirm the financial disclosure (which the parties did not do to confirm whether or not Mr. Chiasson could pay the amount agreed upon. He confirmed that the spousal support was meant to cover her day to day expenses in Grand Etang. [55] The mother was successful in obtaining court permission to take the child to Moncton with her on certain conditions. She commenced degree in Business Administration, an entirely different field of pursuit. [56] This significantly altered the fundamental purpose of the agreement. The house that was provided to the mother for the maintenance and support of the child is now rented by the mother and she receives the rent [57] The spousal support, child support geared at keeping and ensuring that her and his needs were addressed all have changed and new arrangement is necessary to reflect the access costs among other issues. Variation of the Separation Agreement [58] The Respondent claims that this agreement should be varied. There are two aspects to that argument. If there is evidence supporting variation should it be varied under Section 29 of the Matrimonial Property Act or treated like an ordinary variation that occurs when circumstances change relating to support orders. There is Divorce proceeding and the court may impose an order that does not necessarily accord with the terms of the agreement. [59] Both parties had the opportunity to consult with independent counsel. If Mr. Chiasson limited his counsel’s retainer or ability to advise him then that is conscientious choice. have no reason to believe he suffered from any obstacle or impairment. [60] There is no evidence of undue influence, fraud or evidence that would affect the parties ability to retain and instruct counsel. There was no significant power imbalance or difference in bargaining positions of the parties to the agreement. There is nothing that would allow for the contract to be voidable or voided. [61] The Respondent gave up all his interest in the division of matrimonial property (except for his vehicle). He agreed to pay child and spousal support in an amount that was not justified by his actual income or the circumstances of the parties lives. He agreed to term of spousal support that exceeded what one might ordinarily expect in these circumstances. [62] He was prepared to do that to assure himself that his child would remain in their matrimonial home, the same geographical area he continued to reside in. When he could not meet the higher demand for more monthly income he decided at that point to reconsider. The Petitioner informed his parents of her need for more monthly income if she were to remain in the home in the area. The paternal grandparents had similar interests in keeping her and her child in the jurisdiction. They entered into private arrangement unknown to lawyers and the Respondent. Thus the agreement as see it was signed. [63] The Respondent failed to negotiate mobility restriction clause. Instead of explicitly indicating his intent he assumed the joint custody order would protect his interests. He testified he brought the terms of their agreement to his lawyer and instructed him to prepare the agreement as he advised. His lawyer did not testify. As regards to what might have been discussed make no presumptions. Thus he gave the consideration required to finalize their agreement but did not ensure he was fully protected by overtly addressing mobility. [64] It may be unfair in that it was obvious what he intended and wanted. It is clearly unequal favouring the Petitioner. There is no evidence to suggest it was unconscionable. It was entirely foreseeable that mobility would become an issue at some point. No one prevented the Respondent from expressly addressing this point before the agreement was entered into. [65] Therefore the court ought not to interfere with the agreement between the parties. However, in light of my findings and the fact that there are significant changes in the circumstances of the parties the court can review the terms of the Separation Agreement in this divorce proceeding and set an appropriate amount of child and spousal support that confirms to the circumstances of the parties and the needs of the child. [66] close look at the financial situation must now take place in order to determine the appropriate amount of child and spousal support if any. Petitioner’s financial circumstances [67] In 2002 Ms Chiasson earned $17,195.00 received $4,053.00 in EI earnings for total of $21,248.00. [68] In 2003 she earned $6,085.00; received EI of $8,969.00 for total of $15,054.00. [69] In 2004 her total income of $19,865.00 consisted of $9,514.00 earnings and $7,951.00 EI together with some alimony. [70] In 2005 she received Canada Student Loan in the amount of $7,140.00, (another $6000.00 in 2006); income from Chiasson’s Furniture of $2,326.97 and an undisclosed amount of EI. Up to June of 2005 she received $500.00 per month from the Chiassons’, spousal support and and child support as per the agreement. She now receives 380 for child support. She receives rent from her tenant. This income covers the mortgage payment leaving little in surplus funds. [71] The court hearing her interim application created an interim schedule of access between the child and his father and recommended the child support be reduced to accommodate for access costs. He recommended the father be excused from one week support per month. [72] The mother’s January 2006 statement of guideline income shows monthly income from spousal support of $600.00 (not always received); adjusted child support of $380.69, house rental income of $510.00, student loan income of $595.00 bursary income of $83.33 for total monthly income of $2,169.02; $2501.55 with GST and Child tax credit. This creates an annual income of $30,018.00. Excluding her student loan her monthly income is $1,906.00 for an annual income of $22,878.00. [73] She is currently living with her parents, going to University, on student loan and receiving her income as adjusted. [74] She is not currently using her previous education and skills experience. She has decided to obtain bachelor Degree in Business Administration with concentration in accounting at Moncton University. She is capable, competent, intelligent and able to complete this should she continue to attend. [75] She also has the benefit of matrimonial home which she intends to rent to June of 2006. It has municipal assessment of $61,000.00, with an outstanding mortgage of $44,540.00. As of June 2005 the house was not assessed for it’s market value. The equity can be used to advance Ms. Chiasson’s personal pursuit of education that will no doubt benefit her. Respondent’s financial information [76] Assessing Mr. Chiasson’s income is somewhat more difficult. Ms. Chiasson maintains that the Court should use the $60,000.00 figure inserted into the Separation Agreement to justify the amount of child support that the parties decided should be paid to keep Ms. Chiasson and the child in the Cheticamp area. She has not provided proof of this $60,000 income. [77] On the totality of the evidence conclude the parties first arrived at an amount of child support and spousal support which when combined would keep the mother in Cheticamp. Using the guideline table they choose gross income to justify the figure in order to satisfy any subsequent Court scrutiny. The information before me does not support $60,000.00 gross annual income. [78] Mr. Chiasson profits greatly, as did Ms. Chiasson, from the strong support they received in the Cheticamp area from Mr. Chiasson’s family, friends and relatives. The family and friends barter and exchange for services and supplies. This assisted the young couple and greatly enhancing their living conditions. [79] Left on his own, Mr. Chiasson’s income comes from various sources. First, primarily as journeyman electrician, then plumbing repairs, maintenance work on appliances, cash jobs, barter for services given and received among friends, family and relatives. [80] Mr. Chiasson estimated between $400.00 and $500.00 month of his income is earned by cash jobs. He admits that he works year around and he admits that he starts his day at least by 8:30 and ends by 5:00 unless there is particular job and deadline to be completed. He admits he does quite well. He acknowledges that he has sustained himself with strong financial and emotional assistance from his parents. He testified his father paid $28,500 to him to assist in living up to the agreement he signed with the Petitioner. have no reason to disbelieve this. [81] Ms. Chiasson testified that when they lived together there were large amounts of cash at home. That in itself does not sustain conclusion that he earns $60,000.00 as self employed electrician and handyman. [82] do have number of documents that have assisted me in selecting an appropriate annual income. The first historical document is loan application form signed by both Mr. and Ms. Chiasson on March 9, 2002. In that document Ms. Chiasson as C.C.W. earned more monthly than Mr. Chiasson did in his employment. They declared she earned $2,192.00 per month, ($26,304 year). Counsel and the Court have struggled with attempting to decipher his self employment earnings in this document. It appears to be under $1,650.00 per month. The total monthly appear to be $3,300 plus or minus. [83] In this document he acknowledges there are $500.00 month cash jobs. At the time he was also working cash jobs for satellite company, that does not exist any longer. [84] There is second piece of information that is telling. In discussing his work history and his expectations in his six years as self employed electrician and general maintenance worker, he believes, after quoting and bidding on jobs, administrative work, public relations work, if he can complete 20 hours week at his current rate of $30.00 an hour on average, that is decent wage. That would amount to yearly income of $31,200.00 without vacation. [85] Twenty hours week is on the low side He will continue to earn $500.00 cash jobs month at least. That is approximately 3.8 additional hours per week. Rounded to 25 hour week at $30.00 an hour that would yield $39,000 again without vacation. [86] have reviewed the gross profits, purchasing deductions and net profits of Mr. Chiasson’s 2001, 2002, 2003 and 2004 income tax returns. He began late in 2000 and in 2001. His gross income was $40,431.70; net $4,278.00 After purchases(supplies) his net was $13,908.00. Out of that he had to pay advertising fees, fees, insurance, 100% of his motor vehicle expenses( $9396), office expenses and travel. [87] Each year his business deductions differ. There are some consistent ones. In 2002 his gross profit was $69,652.00 reduced after purchasing to $25,394.74. After his business expenses including $12,890.00 in vehicle expenses his net income was $9,357.22 [88] In 2003 his gross profit of $74,938.00 was reduced to $19,164.00 after deducting his purchases. After business expenses including $10,202.25 for vehicle his net income was $3,374.48. [89] In 2004 it was $86,459.00 reduced to $37,725.00 after considering his business purchases. [90] We see an increase in his business. We do not see significant increase in his income. [91] For the 2004 year his consistent expenses including his business tax, fees and etcetera at $1,817.00; meals and entertainment at $44.00; his motor vehicles expenses at $9,489.00; office expenses of $449.00, other supplies and telephone and utilities at $1,803.00 as well as mail at $74.00. He shows capital cost deduction of $10,625.00 for net income of $10,102.00. [92] The capital cost allowance increased from $1,167.00 in 2003 to $10,625.00 in 2004. Mr. Chiasson purchased new vehicle to avoid $2,000.00 worth of repairs on vehicle that had 75,000 km’s He purchased 2005 Ford F150 His old vehicle is still used in his father’s business. [93] Mr. Chiasson claims 10 percent of his household expenditures at his tax deductions, using his house to do his administrative work. He also claims 100 percent of his motor vehicle expenses. [94] In reviewing his expenditures for the purposes of determining child support what is deducted from income tax need not be necessarily be that in which is accepted in child support. [95] Mr. Chiasson needs to have sufficient income to run his business. Mr. Chiasson has filed his 2004 income tax return and that is what have to work with for the child support. He shows gross income of $86,459.00 and net of $9,693.18. After spousal support payments and other deductions he shows taxable income of $6,101.00. [96] In his statement of business expenses he shows purchases during the year of $48,734.00 reflecting the costs of goods purchased for his trade, reducing his gross profits to $37,725.00. He has business fees, licences, dues, memberships or subscriptions in the amount of $1,817.00. Motor vehicle expenses of $9,489.00, office supplies of $449.00. have not an accounting for the $3,321.00 of other supplies His cell phone of $1,803.00 and mail of $74.00 for total of $16,853.00 allowable (by Revenue Canada) as deductions added together with his capital cost deduction of $10,625.00 for total expenses of $27,478.00. However his lifestyle demands more than $10,000.00 income can support. [97] If allow approximately $8,887.00 for expenses including of the vehicle expenses, the cell phone, mail costs office supplies explained as necessary to work he shows an income for child support purposes of $28,838. [98] do not have an adequate explanation for the necessary expenses on his 2124 [99] Normally one would deduct the capital cost allowance as business expense. The truck is new truck purchased partially for personal use, partially for business use although 100 percent claim for business use. It may not have been totally necessary to get him where he needs to go but has an aspect of personal choice, one that am not able to quantify. [100] He lives style of life that exceeds the declared income of $9,693.00.His expenses listed, minus the spousal and child support are $1,484.00 month for total of $17,815.00 month He has acquired new debt since separation by way of monthly Ford Credit of $635.00 and credit union loan of $2800.00. [101] He has effected major renovations to the home he owns with his current partner. This home he estimates is valued at $150,000.00 (with municipal assessment of $143,000.00) His current partner has invested significant sum in the home as well They have two cars and approximately $10,000.00 in new appliances as well as new furniture. [102] allow for the fact that Mr. Chiasson did not fully explain/justify all of his business expenses, some of which may be allowable either as they currently are or as reduced to reflect personal use and choice. On the other hand he admits he earns money by cash jobs. [103] am going to fix his income at $28,837.00. This results in monthly child support payment of $257.00. [104] Another method considered in assessing his income would be to utilize his admission to put in 20 hour work week at $30.00 an hour which would yield $31,167.00. If included in that an extra five hours per week to cover his cash jobs that would bring him to $38,970.00, that would bring me to approximately $30,000.00 after expenses, close to the current amount calculated. [105] Ms. Chiasson has not provided proof that Mr. Chiasson ever made $60,000.00. On the other hand, his current income tax returns with allowable tax deductions reflect an net income that would not support his current life style. His life style is attainable given his cash jobs and living in community in which many individuals trade services. This helps elevate his life style beyond his income. He receives significant contributions from his parents and thus he is able to live life style that exceeds the bottom line in his tax return. Child Care Costs [106] Ms. Chiasson decided to move away from child care services that were practically free. She testified she could not obtain job in the area and would be excepting lesser jobs or lower paying jobs for significant period of time given that she did not have two income household. [107] While married she has significant financial support and ability to work in the furniture business with her father-in-law. She was promised an ongoing job at the furniture store for $40,000.00. She was qualified as C.C.W. and had previous experience with health services and as teacher’s aide. [108] do not have evidence that she pursued those avenues seriously and insufficient evidence to conclude that she could not find suitable employment in the area. [109] The choice to move to Moncton with her family was personal choice. While she indicated it was not done to thwart access, she also indicated that given the conflict between the two subsequent to the separation, the geographical distance may prove to be benefit. accept it was comfort decision to put her in her family’s home. The Petitioner convinced the Learned Trial Justice hearing the interim application that her family offered financial, residential, childcare and emotional support for her as she pursued this degree. [110] This change in the status quo resulting form the move to Moncton has resulted in removing the child from his other parent and extended family. It was proposed by the Petitioner that the Respondent would have as much contact with his child as he did during the course of separation. It has also increased child care costs and transportation costs to ensure that the child remains connected with both parents. [111] There were other options available to her. She could have studied closer to the home of the child, or left the child with his father while she pursued her career. [112] The Petitioner is not pursuing a line of education which is built on her previous skills. While it may be an excellent long term choice for her, it has been done at significant cost to all parties and most particularly her parents. It is choice that was not necessary but may prove beneficial in the long term. [113] If she is successful this child will have the benefit of both parents who can independently support him. However it has also increased her child care costs and by this application she seeks to increase them further. [114] In the meantime she removed the child him from an area in which child care costs could be covered arguable better and cheaper. Given the costs of transportation for access, the comparative financial circumstances of the parties Mr. Chiasson will be responsible for fifty percent of after tax child care costs associated with the child care submitted by Ms. Chiasson She shall verify these actual costs quarterly. Spousal Support [115] Ms. Chiasson entered into an agreement with Mr. Chiasson to receive combination of spousal and child support as set out in their agreement. Many circumstances have changed since that agreement was entered into. The matrimonial home asset was signed over to her as all the furniture and possessions to sustain her in that environment. She has voluntarily removed herself from that environment and the child. The pursuit of her education was personal choice not necessary for income, perhaps profitable in the long run. This educational expenses while desirable for Ms. Chiasson was not necessary in order for her to attain self sufficiency. [116] Her educational expense ought not to be the basis for assessing spousal support. She has the equity in the house and the contents of the home that may be used to support her educational pursuits. It would be important in future applications to know the equity in the home. [117] The amount of 15 years suggested in the spousal support agreement far exceeds what one would consider might be imposed by a court of law given the years they were together and their income disparity. It was indeed generous agreement entered into for the purpose of keeping the mother in the local area. [118] The circumstances have changed significantly. Spousal support is reviewable. [119] The parties lived together for years, married for four and have one child. Ms. Chiasson is employable but has not pursued employment in her own field of training. Instead she has undertaking by student loan and by the strong support of her family to pursue another career. [120] She advocated at the interim hearing that she undertook this with the strong support of her parents. Moving to Moncton has resulted in court ordered obligation to participate in an access regime which she estimates costs her $140.00 per month. This may in fact continue for the foreseeable future if she continues to pursue her degree in Moncton. [121] In reviewing his financial circumstances, his disposable income, fifty percent of the after tax child care costs, the costs of transportation to him to maintain access with his son and the costs of transportation to Ms. Chiasson. I am prepared to order while the child remains in Moncton an additional $300 spousal support for a month for a limited term to address the access costs in the mother’s budget that are associated with access. [122] This $300.00 ought to contribute towards her maintaining her car, the gas required and any incidental meals associated with ensuring that her child remains in contact with his father for the period of time that she resides in Moncton to pursue her degree. [123] Spousal support is reviewable in the event those circumstances change. [124] These moves have significant financial implications and these implications must be addressed in advance in order to maintain this child’s contact with both parents and avoid the need for litigation after the fact. [125] With respect to mobility other than to return to Nova Scotia Ms. Chiasson shall not remove the child from the Province of New Brunswick to live in any other province without the consent of Mr. Chiasson or court order. [126] The spousal support award is also reviewable at the end of her current degree. Long term support is not called for in these circumstances. Support is also reviewable upon change in circumstances and/or access regime. [127] Counsel for the Respondent shall draft the order. The parties may make submissions on costs after the custody and access issues are settled by court order or agreement of the parties. Justice Moira Legere Sers

The wife sought to have the terms of the parties' separation agreement incorporated into the corollary relief judgment following a four year marriage. The husband sought to vary the provisions of the agreement regarding spousal and child support on the basis that the particulars of the agreement did not reflect his net business income derived from self-employment. The husband argued that he had entered into the separation agreement (which provided for joint custody of their young child, gave the wife all of the matrimonial assets with the exception of the husband's vehicle, and provided for spousal support in the amount of $600 per month for 15 years) only as an attempt to have the wife stay in the local area with the child. The wife had since moved with the child to New Brunswick where she was living with her parents and attending university; she was renting out the matrimonial home. Pursuant to the current court order, she was contributing the sum of $140 per month to the husband's access costs. Husband's current income set and child support awarded; the husband shall be responsible for 50 percent of the after tax child care costs; an additional $300 of spousal support ordered per month while the child remains in New Brunswick to address the access costs in the mother's budget; spousal support is reviewable in the event that these circumstances change, and at any rate, upon the completion of the mother's current degree; the mother shall not remove the child from the Province of New Brunswick to live in any other province without the father's consent. Although the court could not interfere with the agreement under s. 29 of the Matrimonial Property Act, the spousal and child support geared at keeping the wife in the local area and ensuring that her needs were addressed had all changed and a new arrangement was necessary to reflect the access costs among other issues. The wife had chosen to move away from child care services provided by the family that were practically free, as well as significant financial support and the ability to work in the furniture business with her father-in-law; she was not now pursuing a line of education which would build on her previous skills. Her educational expenses ought not be the basis for assessing spousal support and the duration of support set out in the separation agreement far exceeded what might be imposed by a court given the years they were together and their income disparity. The court reviewed the husband's history of income and expenses in setting his income for child support purposes.

2006nssc139.txt

J. U.F.C. of A.D. 1994 926 J.C. S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: NICOLE JEANNETTE GUSELLE and JOHN FREDERIK WORLEY GUSELLE RESPONDENT L. BURROWS for the petitioner B. MORGAN for the respondent JUDGMENT DICKSON J. DATE: NOVEMBER 3, 1995 The parties have been unable to resolve three issuesarising from the breakdown of their 4 1/2 year marriage:1. the date spousal support should terminate2. the value of property in British Columbia3. whether the wife's student loan is a matrimonial debt SPOUSAL SUPPORT The wife is 26 years of age and the husband is 30. They married February 23, 1990 and separated October 5, 1994. They have no children. At the time of separation the wife was unemployed and completely dependent upon the husband. On October 26, 1994 she was awarded interim spousal support of $1,500.00 per month. Unfortunately, one year later, she is still unemployed. She has no income and is still completely dependent upon the support paid by her husband. She has some health problems but no medical evidence was offered suggesting her health prevents her working. She has B.Sc. (biology) degree, which she completed during the marriage. Since graduating in May 1994, she has sent out 40 resumes to prospective employers across all of North America, but she has not been invited to one job interview. can only conclude that her chosen field offers little job opportunity. The wife's counsel contends that his client has been disadvantaged by the marriage breakdown. While that disadvantage has been redressed temporarily by the interim order for support, he argues that she needs more time to make the transition from state of dependency to one of self-sufficiency. He asks that support of $700.00 per month be ordered for another year. The husband takes the position that his obligation to support the wife should end. He says she is capable of supporting herself and should have found job by this time. Alternatively, if she is not capable of working, her inability is not attributable to the marriage or its breakdown. Consequently, he should not have to support her indefinitely. He claims she has not been disadvantaged economically by the marriage but, in fact, is in far better position now than she would have been had she not married. He concedes she was entitled to support for short term following separation but he contends that such term has passed. Furthermore, the trial of this action, commenced in March 1995, was adjourned at the request of counsel for the wife to afford him the opportunity of obtaining recently revealed medical evidence that would bear upon the wife's ability to work. When the trial did continue in September 1995, the wife's counsel offered no such evidence. The husband has been prejudiced by this unnecessary delay, his counsel argues, by having to continue paying support of $1,500.00 per month. He claims recovery of all payments made since April 1, total of $9,000.00 by way of credit to the amount he must pay the wife for her share of matrimonial property. Section 15(5) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) instructs me to take into consideration the condition, means, needs and other circumstances of each spouse when making support order. am to consider the length of time the spouses cohabited and the functions performed by the spouse claiming support. Section 15(7) instructs me to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown and to relieve any economic hardship suffered. Finally, am to promote the economic self- sufficiency of each spouse within reasonable period of time. Certainly the economic condition of the wife at the time of separation was one of dependency. She had no means to satisfy her basic needs and the husband had sufficient means to satisfy that need. Without doubt the wife suffered economic disadvantage when her husband left home. She was suddenly deprived of any source of support and it was necessary for the court to relieve her economic hardship by granting an interim order for support. However, am now being asked to make final order which should, in addition, promote economic self- sufficiency within reasonable time. How can support order promote economic self-sufficiency? have always been troubled by that question. Perhaps the only way is for the order to be not so generous in amount and/or length of time that the dependent person will be tempted to put forth less than maximum effort toward that goal. That would certainly promote self- sufficiency; it may even force it. In this case, think the wife can be expected to achieve self-sufficiency eventually. She is young. She has university degree, albeit one that doesn't attract any job offers. She may have to seek work outside her chosen field, but eventually she should get job if she puts forth diligent effort. What is reasonable time for her to do this? do not think it can be determined prospectively. Any attempt to do so suggests an ability to foretell the future. Instead it should be determined retrospectively; by looking at what has happened as opposed to what is likely to happen. So far she says she hasn't been able to find job. don't think it has been for lack of effort. She has sent out 40 resumes. But do believe she has been rather selective. There is no evidence that she has sought work outside her chosen field. She should have. It should be obvious to her that she is not going to find work in her field, having not one job interview in year and half. During that time she has taken class at university and has done volunteer lab work. She cannot wait indefinitely for an invitation from an employer who needs person with her training. She has had long enough to make the transition to economic independence. She suffered no economic disadvantage from her short-term marriage. She didn't divert her talent or use her time to develop family. In fact, she is better equipped to support herself now than she was when she entered the marriage. am not prepared to terminate the support order retroactively to April 1. Although no medical evidence was offered, there was sufficient testimony to suggest that her health was fragile. However, there is no evidence that such state of health continues. The husband's obligation should endon November 30, 1995, and there will be an order accordingly. VALUE OF BRITISH COLUMBIA PROPERTY Both parties hired appraisers to value plot of unimproved land located in British Columbia resort area. The wife's appraiser, Kevin Veitch, says the fair market value of the property is $64,000.00 on January 20, 1995, which is the date he made his appraisal. The husband's appraiser, Donald Johnson, says the fair market value is $49,000.00 on October 7, 1994, which is the date the action was commenced. The husband's counsel points out that Mr. Veitch assessed the value on date other than October 7, 1994, which should be selected as the date of valuation. Not much turns on that. There is nothing before me to suggest the value on October 7, 1994 was different than the value on January 20, 1995, some months later. Both appraisers used the comparable sales approach. Mr. Johnson's comparables are within miles of the property. Mr. Veitch's comparables are somewhat further away and are located in areas that, unlike the subject property, have experienced some commercial development. The main difference in the two opinions is the discount allowed for distance from the water. Mr. Veitch said only that it was within walking distance of the water. Mr. Johnson pointed out that that "walking distance" is 1/2 miles. For these reasons prefer the opinion of Mr. Johnson. The husband bought this land before the marriage for $37,000.00. He put $10,000.00 cash into the property and reduced the amount owing on the purchase price by $400.00 prior to the date of marriage. He is entitled to an exemption for this amountpursuant to section 23 of The Matrimonial Property Act, R.S.S.1981, c.M-6.1. I have found the value of the property to be$49,000.00 on the date the action was commenced. Therefore, $38,600.00 is the value to be divided between the parties. WIFE'S STUDENT LOAN month before the marriage the wife borrowed $3,570.00 under the Canada Student Loans Act, R.S.C. 1985, c.S- 23. The money was used to pay off her debts. When the parties separated there was $3,140.00 owing on the debt which the wife contends should be regarded as matrimonial debt. The husband takes the position that it is not debt of the marriage. Unlike matrimonial property, matrimonial debt is not defined in The Matrimonial Property Act (supra). The only reference to debt is made in section 21(2), which lists the equitable considerations that may justify other than equal distribution of matrimonial property. When dividing matrimonial property, the court takes the practical approach of simply subtracting the amount of debt assumed by party from the value of the property vested in him or her. Matrimonial property is defined as any property that is owned by one or both spouses at the time the application for division is made. To be consistent, it is logical to regard debts the same way; i.e., any debt owed by one or both spouses at the time of the application. The student loan owed by the wife should, therefore, be regarded as matrimonial debt. However, section 23 exempts from distribution matrimonial property owned by spouse before the marriage. To continue consistency, debt must be treated the same way. This debt should, therefore, beexcluded from the equation. Doing so produces fair result. The loan was used to pay debts incurred by the wife prior to themarriage. Those debts are not associated with the marriage. The husband realized no benefit from them and it is illogical and unfair that he should be required to share payment of them. DISTRIBUTION OF MATRIMONIAL PROPERTY Assets Assets In Wife's Possession Value In Husband's Possession Value Furniture 8000. Bank account withdrawal 100 Honda 7000. Volkswagen Van 500 Bank account withdrawal 200. Sale Proceeds (mat.home) 13785 R.R.S.P. "D.C. Plan" 15927 R.R.S.P. "Altamira Plan" 18905 B.C. Property 38600 Vacation pay 3218 $91035 Less utility bill paid by Wife 155. Less Income Tax Liability 2575 $88460 Total value for distribution $103,505. 1/2 share to each party 51,752. Less value in Wife's possession 15,200. Shortfall 36,552. Less Visa cash advance $3018. Interim Distribution $5000. 8,018. Amount owing to Wife by Husband 28,534. There will be judgment accordingly. There will be no order for costs. In addition, the 6 Cominco Limited shares in thehusband's possession are to be sold and the net proceeds dividedequally. The husband has suggested partial payment by spousal roll-over of R.R.S.P. funds and payment of the balance by monthly payments. The wife's counsel did not consent to such proposal so am unwilling to impose it upon her. Arrangement for payment must be left to the parties. If they require further directions they have leave to apply.

The parties applied to the Court to resolve the issues of spousal support and a division of the matrimonial property. The parties had been married 4 years. There were no children of the marriage. The Wife had a university education but was unemployed. She had already received interim support in the amount of $1,500.00 per month for 1 year. HELD: 1)The support order was terminated effective November 30, 1995. 2)The Court determined the value of a resort property owned by the Husband in BC and permitted an exemption for its value as at the date of marriage. 3)The Court refused to permit the Wife to subtract from the value of her assets, the amount owing on a student loan which pre-dated the marriage. 4)With the exception of those items already discussed, the Court divided the value of the matrimonial property equally.

c_1995canlii5774.txt

1994 S. H. No. 106474 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: ROBERT DOUGLAS BAIRD and DOUGLAS SINCLAIR and SHAUN JANES DECISION HEARD: Before the Honourable Justice D. Merlin Nunn, at Halifax, Nova Scotia on May 12,13,14 and 15,1997. DECISION: July 18, 1997 COUNSEL: Sandra MacPherson Duncan and Paul Arab O'Leary, for the Plaintiff Brian W. Downie and James L. Chipman, for the Defendant NUNN, J. The plaintiff alleges negligence by the two defendant medical doctors and claims damages arising from the negligence. The facts, as find them, are that on the evening of April 17, 1993, the plaintiff, between 6:30 p.m. and approximately 1:30 a.m. on Sunday, April 18th, visited with friends, drank few beers and then he and his friends visited three local drinking establishments, where the plaintiff indicates he had couple of beers at two of the places and one at the third and last. At about 1:30 a.m. he left alone and began walking home. As he approached Bell Road he decided to walk across the base of Citadel Hill as the fence there was open. When he got to the other side there was no opening in the fence and he decided to climb over it. The fence is an iron fence with iron pickets, pointed at the top. As he reached the top, he slipped and his right calf became impaled on picket. According to him, he was hanging, upside down, on the fence, for about half an hour before several young people helped him off the fence. He then walked to the Victoria General Hospital Emergency Department, arriving there at 2:20 a.m. He was first interviewed by the triage clerk, Jeffrey Newton, who took the initial history and whose notes are in Exhibit 2, Tab at page 2. These notes indicate the presenting complaint as puncture/tear wound received while climbing an iron fence. No mention is made of the fact that the plaintiff was impaled on the fence for half an hour and am satisfied that the plaintiff did not mention this fact. Before continuing, must indicate that the triage clerk's notes indicate an extremely low temperature of 33.6 and low blood pressure of 98/60. Nobody who subsequently dealt with the plaintiff seemed concerned, explaining that the digital tympatic thermometer used was notoriously inaccurate and that the plaintiff's presence and appearance was totally inconsistent with those readings. accept that such was the case. There is no evidence whatsoever to suggest that the plaintiff was in shock. Although these readings were referred to extensively in the trial, am satisfied that they have no bearing on the real matters of concern here. The triage notes also indicated that the plaintiff had consumed alcohol. Following triage the plaintiff was then assessed by the emergency nurse, Linda Foroughi, who noted, on pages and of Exhibit 2, Tab 6, that the plaintiff was drowsy and oriented and that the plaintiff caught his leg on metal fence. Again, there is no mention of the fact that the plaintiff was impaled for half an hour. In her testimony she explained that "drowsy and oriented" meant that the plaintiff was not drunk and that on scale where 15 is normal, the plaintiff would be 14. Again, accept her evidence that the plaintiff did not indicate he was impaled on the fence for length of time. also am satisfied that the plaintiff was not drunk: His drowsiness can be explained by the fact that he had been drinking and it was then about 3:00 a.m. should add that the plaintiff, himself, testified that he was not drunk. It was about an hour after arrival at Emergency before the plaintiff was seen by the defendant, Dr. Janes, an intern in the Emergency Department. On duty with him was the defendant, Dr. Sinclair, an emergency room specialist, who was Dr. Janes' supervisor. Dr. Janes testified that, following usual procedures, he read the triage clerk and nurse's notes and, then asked the plaintiff what happened. The plaintiff's response was that he was jumping fence and picket stuck in his leg. Dr. Janes asked him about the picket, how far it penetrated, whether anything was broken off the picket and whether there were any other injuries to which the plaintiff responded. Dr. Janes testified that no mention was made of being impaled on the fence and though that contradicts the plaintiff's testimony on this point, accept Dr. Janes' account of what was told. Dr. Janes then examined the leg, found no arterial or neurological damage, cleaned around and into the wound with saline and savlon solutions for about 10 minutes, then gave local anesthetic to freeze the wound area. The wound itself was gaping wound about cm across. He then put his finger in the wound to check if there were any other tracks of the wound and to make sure there was no foreign bodies in it. None were found. His finger had entered the wound to cm. He again wiped out the wound with gauze soaked in solution and syringed it out for further 10 minutes finding no foreign bodies. At this point Dr. Janes reported to Dr. Sinclair, indicating the history, what he had done and his physical findings. After discussion Dr. Sinclair advised him to further flush out the wound well, to close it and have the plaintiff see his family doctor the next day. Dr. Janes then flushed out the wound for another 10 minutes, sutured it with vertical mattress suturing and dressed the wound. He testified that, throughout the whole time he was treating the plaintiff, he was talking to him and told him to keep his eye on the wound for any sign of infection, to see his family doctor on Monday and, in the meantime to keep off his leg, to elevate it and to use crutches. He did not give or prescribe antibiotics, having made the judgment call that, in accordance with best practices, antibiotics are not required in young, healthy males where the wound is clean after extensive flushing out. On this latter point, the evidence bears out the wisdom of this decision and, as well, even if given, would not have altered the result. Dr. Janes testified that he looked at the whole leg, front and back and never saw any indication of wound on the front of the leg, nor did his finger probe indicate anything on the front of the leg. The plaintiff, however, testified that Dr. Janes asked him about mark on the front of his leg. have difficulty accepting the plaintiff's testimony on this point. The medical records prepared at the time make no reference to such mark or wound, Dr. Janes was definite that none was observed and Dr. Petrie, who was called as an expert by the plaintiff, indicated that the skin on the front of the leg would not show any such mark so soon after the injury had occurred. As result accept Dr. Janes' testimony on this point. In total, Dr. Janes spent approximately an hour with the plaintiff before discharging him. The doctor's notes at page of Exhibit 2, Tab contain the discharge advices noted in the preceding paragraph though they do not indicate anything about keeping an eye on the wound for any infection. The contents of the discharge recommendations were fortified by the nurse's discussions with the plaintiff on discharge. The plaintiff testified that no mention was made of infection or of what to look for if infection set in. However, in all the circumstances, particularly of the heavy flushing out and the conversation of Dr. Janes, am satisfied that such discussion did take place. Perhaps it was missed by the plaintiff due to his drowsy condition. Dr. Sinclair, an emergency medicine specialist, testified at length on the emergency room procedures and how interns work under the supervising physician. He confirmed that Dr. Janes reported to him the history and physical finding and that his recommendation was profuse cleaning before suturing and he agreed that antibiotics were not required. He had observed the wound as it was being sutured. Following discharge, the plaintiff returned to his apartment in Halifax, arriving there around 4:15 a.m. He was in some pain and around 8:00 a.m. he phoned his parents in Truro, told them what had happened and that his leg was very painful. His mother is nurse. His father came to Halifax and took him to Truro. Throughout the day his pain grew worse. At around 5:30 p.m. he went to the Truro Hospital Emergency Department, where he wasattended to by Dr. DiQuinzio, who took his history, examined his leg, took out the stitches, had X-rays taken, as well as blood tests and called in Dr. Curtis, surgeon. At this time, the plaintiff told Dr. DiQuinzio that he had been impaled on the fence for about 10 minutes. The result of this was he was advised that he would have to return to hospital to have the leg opened and debrided and that this would be best done in Halifax. He was then sent by ambulance to the Victoria General Hospital where at about 10:00 p.m., he again arrived at Emergency. He was admitted to Hospital, given four potent antibiotics in maximum doses after examination by an orthopedic intern, with X-rays ordered for the morning to compare with the Truro X-ray. The initial fear in Truro was the possibility of gangrene poisoning although this did not materialize. On Monday, April 19th, at about 3:30 p.m., Dr. Petrie performed the necessary surgery, fasciotomy and debridement of the infected right calf. In simple terms, after general anesthetic, Dr. Petrie explored the wound, found it extended through to the skin on the front of the leg, which by this time, showed signs of damage. That skin was excised and the muscle cut away to surgically clean wound (debrided). It was then irrigated and packed but not closed. The plaintiff spent the next three weeks in hospital during which time the dressings were cleaned frequently, the packing finally removed and skin graft was performed by Dr. Parkhill so that the wound would heal. The skin graft was approximately by 11 cm in size and was quite successful. In hospital he received an assortment of antibiotics, morphine, demerol, gravol, and Tylenol 3. Following the skin graft, he required physiotherapy to get his foot dorsi flexed as his foot was in an extended position for the skin graft. The final result, about one week after discharge, in the appearance of the leg, is shown in the photograph Exhibit 3, though its appearance has greatly improved by the time of trial. Following discharge the plaintiff was on crutches for to weeks. He now indicates that he has pain when walking up steep inclines or hiking, that he has difficulty sleeping, having to hang his right leg out, that he has pain when engaging in sports activities, that he is very aware of and embarrassed by the scar which restricts his dressing in shorts. As to sports, the plaintiff had hoped to have summer recreation jobs, but he indicated he had to turn down job with Sackville Recreation and could not apply for job with Sport Nova Scotia because he felt he could not perform with the pain. On cross-examination he indicated that he is not taking medication since June 1993 and there is nothing in day to day activities that he cannot do, though squatting causes some pain. He still plays some tennis and golf though not without pain. Although he formerly played volleyball, he has only done so once during which he injured his left leg which he attributes to his right leg injury. The testimony of other witnesses, notably Dr. William Stanish, sports medicine expert, does not support the plaintiff on this latter point. There is evidence that the plaintiff had, before this incident, some medical problems particularly rheumatological condition which affected some of his activities and there is note in Exhibit 2, Tab 3, Page 1, clinical record, that the plaintiff had to quit work as cook at the Sheraton Hotel because of low back problem. The plaintiff denies that he had to quit work and states he was laid off. only mention these points as they occurred in the evidence, but they are of no relevance. The plaintiff's father testified that he did not take the plaintiff to the hospital on the morning of April 18th because the plaintiff said he was instructed to see his family doctor on Monday. The same response was given to several suggestions during the day that they go to the hospital in Truro. Dr. David Petrie was qualified as an expert in orthopedic surgery and also in the emergency treatment of trauma to extremities. As he was the treating surgeon, he testified as to what he had done for the plaintiff, all of which have already referred to. Though he was so qualified by the Court, he is not an emergency room physician, nor is he certified as such and most trauma he sees is referred to him. With regard to the plaintiff's initial treatment, Dr. Petrie's opinions are expressed in Exhibits and 9. In Exhibit 8, Dr. Petrie states: "I do feel that the severity of the initial injury was not recognized by the treating physicians on his arrival in the Emergency Department. Whether this was problem in communication by the patient or failure by the intern and/or staff emergency room physician to properly inquire as to the nature of the injury, am not certain." (emphasis added) That letter continues with the notation that the plaintiff was impaled, hanging upside down for about twenty-five minutes. It then goes on to discuss "a through and through puncture wound of the calf with an impalement type history" and the manner such wound should be treated. Paragraph of that letter is quite significant. It states: "I think it is difficult to respond as to what the duration and nature of his hospitalization and treatment would have been if the wound had been treated primarily with surgical debridement. Some of these impalement (emphasis added) problems can be very difficult to manage and do not always respond quickly to our treatment, that is incision, drainage, debridement, antibiotics, elevation, etc." In the next paragraph he indicates that the plaintiff's scarring is result of the treatment and would have occurred in any event. After indicating that he would think it appropriate to have kept the plaintiff in hospital for observation, he concludes by saying that "these situations occur not uncommonly and it is left up to the treating physician as to how far one should go in managing these wounds." In his subsequent letter, Exhibit 9, written two years later and responding to questions of plaintiff's counsel, Dr. Petrie expresses the opinion that the medical history take by Dr. Janes was inadequate. The relevance of the length of time impaled was important as it indicates significant period during which contamination and damage to the soft tissues was likely to take place as opposed to gunshot wound for example. In his opinion, this wound should have had surgeon's consultation at the initial presentation. He then provides his opinion that antibiotics should have been prescribed, the plaintiff should have been kept in hospital, and the would should not have been closed. He does state that the cause of the subsequent infection was contamination in the wound that occurred at the time of impalement. He concludes: "It is my opinion that Doctor Janes and Doctor Sinclair did not take the necessary steps as to how to best manage this wound because they really did not appreciate the depth and nature of the wound." Dr. Jan Ahuja, was called by the defence and qualified as an expert in Emergency Medicine, being certified both in the United States and Canada. He practices in Ottawa. He was provided with all the medical reports and, in his opinion, the note taking was adequate as he explained that in emergency treatment, it is the standard of care that is most important and not the note taking especifically with the number of persons treated daily in an emergency facility. He opined that the level of care and procedures followed here were appropriate and within the standard of care of proper emergency care. He concluded that emergency care is initial treatment and the plaintiff here was advised to quick follow. As well, in emergency, judgments are made with little information. He was satisfied that the discharge advice was adequate and acceptable and shows careful consideration and assessment. Dr. Ahuja disagreed with Dr. Petrie in number of areas. First, he testified that in his opinion, there was no reason to involved the surgeons as the initial examination did not reveal the presence of any foreign bodies in the wound. It was not through and through wound at the time of initial presentation, nor were there any signs of infection. The really very significant point of impalement was never revealed to the triage clerk, the nurse or Dr. Janes. While admission to hospital is always an option, there was nothing here at the initial time which warranted admission. As well, nothing indicated debridement of the wound. On the whole, in view of the evidence Dr. Janes had at the time, the decision to thoroughly flush out the wound and close it was appropriate and within the standard of an emergency room physician. At the time of closing the wound, there was no concern for infection as the wound was thoroughly cleaned with no reason to suspect soft tissue damage or infection, though the discharge instructions contemplated that any onset of infection would be discovered. It was his opinion that the quite lengthy impalement and the obvious movement to dislodge and actually getting off the picket led to the infection and these were facts the plaintiff had not revealed on his initial presentment at the Emergency Room. transcript of the evidence in this case will reveal that every aspect of the emergency room treatment of the plaintiff was examined and questioned minutely. However, it is not for me to deal with each particular process of emergency room practice and make judgement thereon. My concern is whether, on these facts, the performance of the defendants, or either of them, was negligent and, if so, what are the damages following therefrom. Before dealing with the law, and on the matter of damages, Dr. William Stanish, was called by the defence and qualified as an expert in orthopedic surgery, sports medicine, muscle injury and treatment. He examined the plaintiff, at the request of the defendants' counsel, and filed his report, which is Exhibit 17. He found 20% loss in ability to dorsi flex his foot which was caused by the scarring and legitimate difficulty in ability to squat. He indicated that it would be difficult to determine if the result would have been different if the plaintiff had been sent to surgery when he initially presented. In other words, there might have been similar degree of debridement though possibly the infection led to more. In his view if, in the judgement of the treating physician, the wound was clean, then surgery is not indicated. As to the final result, it is Dr. Stanish's opinion that the plaintiff suffers very mild disability. Turning to the law, there is not doubt the defendants owed legal duty to the plaintiff. But, to recover, the plaintiff must show negligence on the part of one or both of the defendants and then that he suffered loss or damage as result, with that loss flowing directly from that negligence of the defendants, or either of them. The standard of care required at law is, as stated by Schroeder, J. A. in Crits and Crits v. Sylvester et al, 1956 CanLII 34 (ON CA), [1956] D.L.R. (2d) 502 at p. 508: "Every medical practitioner must bring to his task reasonable degree of skill and knowledge and must exercise reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of normal, prudent practitioner of the same experience and standing, and if he holds himself out as specialist, higher degree of skill is required of him than of one who does not profess to be so qualified by special training and ability." In the present case then the standard to apply for the defendant, Dr. Sinclair, is higher than for the defendant, Dr. Janes. Dr. Janes, as an intern, must exercise the degree of skill and care which is not less than the ordinary skill of junior doctor. Acknowledging the standard, one cannot assume negligence merely because particular treatment was unsuccessful or that further complications arose. This is not perfect world and though, to some, the standard of perfection is expected, such is not always the case. If the treating doctor chose one of several recognized methods of treatment, though that particular method was unsuccessful and another would have been better, he is not negligent because of his lack of success. As Taschereau, J., stated in Cardin v. City of Montreal (1961), 1961 CanLII 77 (SCC), 29 D.L.R. (2d) 492, at p. 494: "The doctor is not guarantor of the operation which he performs or the attention which he gives. If he displays normal knowledge, if he gives the medical care which competent doctor would give under identical conditions, it is difficult to sue him in damages, if by chance an accident occurs. Perfection is standard required by law no more for doctor than for other professional men, Accidents, imponderables, what is foreseeable and what is not, must necessarily be taken into account." Perhaps one of the better summaries of doctor's liability is contained in this passage from MacDonald v. York County Hospital (1972), 1972 CanLII 392 (ON SC), 28 D.L.R. (3d) 521 which was adopted by Hallett, J. in Leadbetter and Leadbetter v. Brand and MacLellan (1980), 37 N.S.R. (2d) 581 at 591 and by Boudreau, J. in Grant Estate v. Mathers et al (1991),100 N.S.R. (2d) 363 at p. 373: "It cannot be assumed that doctor has been negligent merely because the operation was unsuccessful or because the plaintiff sustained injury. He is protected from liability where he has honestly and intelligently applied his mind to the problem and arrived at conclusion or judgment upon which he acted, although, that conclusion or judgment proves subsequently to be incorrect. Whether doctor's mistake is classified as an error of judgment or negligence really depends on the standard of care required in the circumstances. If the doctor's act is in accord with the standard or care but, nevertheless, still caused injurious results he will be said to have committed an error of judgment. If his act or judgment is so unreasonable that an average practitioner would not have proceeded in this manner, he will likely be held to be negligent." At first blush it would appear that there is decided difference of opinion between the medical experts who testified as to what should have been done but, upon closer inspection such is not the case. Dr. Petrie's opinion is based upon the knowledge that the plaintiff was impaled for approximately 25 minutes and that the injury was "through and through" wound. Those two facts but, perhaps, mainly the first lead him to the conclusion of what should have been done. However, those two facts were not within the knowledge of the defendants. The plaintiff did not reveal that he had been impaled for length of time and, as Dr. Petrie stated, that was very important fact as it would have indicated soft tissue damage and called for more than simple irrigation. Dr. Janes was presented with fresh wound, with no indication that it had penetrated through the leg. He examined it, irrigated it profusely and found no presence of foreign matter. Indeed, there may never have been any foreign matter in the wound as the later infection was attributed to the length of the impalement and the damage to tissue which was not evident at the time. am satisfied that he met the required standard of care, exercised the appropriate skill and adopted well accepted method of treatment. No fault can be found with his exercise ­of judgment on the appropriate treatment at the time. Similarly, he can not be faulted for not prescribing antibiotics, though there are different views on this among medical experts. His view, supported by Dr. Sinclair, that they were not required with clean wound, after profuse irrigation, for healthy young male is unassailable. great deal was made in argument of the discharge instructions given by Dr. Janes and fortified by the nurse by the plaintiff's counsel who alleged they were inadequate. The notes on discharge instructions are indeed brief but what is overlooked is that Dr. Janes was talking to the plaintiff throughout the treatment though admittedly the plaintiff was drowsy and may have fallen asleep. am satisfied that the possibility of infection was mentioned and the instruction to see his family doctor the next day was clearly indicative of the possibility of complications. certainly cannot say that he was negligent in not giving adequate instructions on discharge. While the standard for Dr. Sinclair is higher because he is specialist, there is nothing in the evidence to indicate any failure on his part to meet that higher standard. He also had no more information than Dr. Janes and, following standard emergency room procedures, with the information of Dr. Janes, his advices in the case of the wound, as presented, were appropriate and within the type of performance expected of an emergency medicine specialist. On the totality of evidence, it is clear that the subsequent infection was caused by the injury itself and nothing done by the defendants contributed to it in any way. Essentially, their treatment was ineffective. Though it is, in retrospect, true that the defendants underestimated the nature and extent of the injury, the real fault lies with the plaintiff who, for whatever reason, failed to reveal fully what had happened to him. There is no doubt that the wound observed by Dr. DiQuinzio and later by Dr. Sinclair and the surgical staff and Dr. Petrie was very different from the same wound observed by the defendants on first presentation at the Emergency Department, but that is attributable to the infection which set in. During the trial one troublesome point was whether the result, i.e. the debridement of muscle tissue and the subsequent skin graft and resulting scars and subsequent debilities would have been the same if the plaintiff had been kept in hospital and operated on on the Sunday, April 18th. No satisfactory proof was offered that suggested differently and can only find that, in this regard, the plaintiff has failed to meet his burden of proof. Even if were wrong in finding no negligence on the part of the defendants, there is no satisfactory evidence that any of the plaintiff's damage resulted from the acts of the defendants. At best the evidence might permit the argument that perhaps more tissue had to be removed because of the infection, but that, again, does not contribute much to calculation of damages. As to damages, the plaintiff's counsel argued for damage award in the $20,000.00 to $30,000.00 range. On the evidence presented to me, am satisfied that his disability is very mild and, if were wrong in my determination that the defendants were not negligent, would have assessed damages at $3500.00 allowing nothing for the scar or the embarrassment due to it as that is attributable to the injury itself and would have resulted in any case. In conclusion, find that the defendants and each of them did not fall below the standard of care required of them in their treatment of the plaintiff. Further the plaintiff's loss is not attributable to any of the acts of the defendants but rather is the direct result of the injury he suffered. The plaintiff\'s case, therefore, is dismissed with costs. J. July 18, 1997 Halifax, Nova Scotia

The plaintiff's leg was impaled for 25 minutes on an iron fence which he had attempted to climb for. He was treated at the emergency department of the Victoria General Hospital for an hour. He did not inform the doctors as to the length of time he had been impaled. Upon his release he was advised to watch for any infection. He was not issued antibiotics. The wound quickly worsened, and the plaintiff was forced to undergo surgery and a skin graft to repair his leg. He sued the doctors who initially treated him for negligence. Dismissing the action, that the subsequent infection was caused by the injury itself and nothing done by the defendants contributed to it in any way. While the defendants underestimated the nature and extent of the injury, they provided a recognized method of treatment based upon the knowledge they had. The real fault lies with the plaintiff who failed to reveal fully what had happened to him.

1997canlii1932.txt

1992 S.H. 81964 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: UNITED STEELWORKERS OF AMERICA, Locals 6874 and 4883 on behalf of all members and former members who are beneficiaries of Pension Plan for Unionized Employees of the former Amherst Aerospace Ltd., and ROBERT MELANSON, ROBERT SPENCE and HARLEY ELS, Trustees, on behalf of all beneficiaries of Pension Plan for Unionized Employees of the former Amherst Aerospace Ltd., and ROBERT MELANSON AND HARLEY ELS, Trustees, on behalf of all beneficiaries of Pension Plan for Salaried Employees of the former Amherst Aerospace Ltd., and DAVID HENWOOD, beneficiary of Pension Plan for Unionized Employees of the former Amherst Aerospace Ltd., and MARIE A. LAURETTE, beneficiary of Pension Plan for Salaried Employees of the former Amherst Aerospace Ltd. and PETER KING and STEPHEN RANKIN and BRIAN FLEMMING First Defendants ‑and- AMHERST AEROSPACE INC., body corporate Second Defendant and CONFEDERATION LIFE INSURANCE CO. LTD., body corporate Third Defendant STEWART McKELVEY STIRLING SCALES and WILLIAM M. MERCER LIMITED Third Parties HEARD: Before the Honourable Justice D.W. Gruchy in Chambers in Halifax, Nova Scotia, on November 9, 1993 DECISION: December 3, 1993 COUNSEL: Ronald A. Pink, Esq., Q.C. and Ms. Leanne MacMillan, Counsel for the Plaintiffs Alan Parish, Esq., Counsel for the First Defendants Alan Stern, Esq., Q.C., Counsel for the Third Party Mercer A. William Moreira, Esq., Counsel for the Third Party Stewart McKelvey Stirling Scales ERRATUM Decision, page 4, lines and 9, the following words should be deleted: "plaintiffs and employees of‑ Amherst Aerospace Inc.", to be replaced with the following words: "Amherst Aerospace and its employees. Decision, page 7, line 1, second word "plaintiffs" should be replaced with the word "applicants". Halifax, N.S. April 14, 1994 1992 S.H. 81964 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: UNITED STEELWORKERS OF AMERICA, Locals 6874 and 4883 on behalf of all members and former members who are beneficiaries of Pension Plan for Unionized Employees of the former Amherst Aerospace Ltd., and ROBERT MELANSON, ROBERT SPENCE and HARLEY ELS, Trustees, on behalf of all beneficiaries of Pension Plan for Unionized Employees of the former Amherst Aerospace Ltd., and ROBERT MELANSON AND HARLEY ELS, Trustees, on behalf of all beneficiaries of Pension Plan for Salaried Employees of the former Amherst Aerospace Ltd., and DAVID HENWOOD, beneficiary of Pension Plan for Unionized Employees of the former Amherst Aerospace Ltd., and MARIE A. LAURETTE, beneficiary of Pension Plan for Salaried Employees of the former Amherst Aerospace Ltd. and PETER KING and STEPHEN RANKIN and BRIAN FLEMMING First Defendants and AMHERST AEROSPACE INC., body corporate Second Defendant and CONFEDERATION LIFE INSURANCE CO. LTD., body corporate Third Defendant STEWART McKELVEY STIRLING SCALES and WILLIAM M. MERCER LIMITED Third Parties DECISION HEARD: Before the Honourable Justice D.W. Gruchy in Chambers in Halifax, Nova Scotia, on November 9, 1993 DECISION RELEASED: December 3, 1993 COUNSEL: Ronald A. Pink, Esq., Q.C., and Ms. Leanne MacMillan, Counsel for the Plaintiffs Alan Parish, Esq., Counsel for the First Defendants Alan Stem, Esq., Q.C., Counsel for the Third Party Mercer A. William Moreira, Esq., Counsel for the Third Party Stewart McKelvey Stirling Scales GRUCHY, J. This is an application by the first defendants (applicants) for an order declaring Pink Breen Larkin (Pink Breen) ineligible to represent the plaintiffs as a result of a conflict of interests. The action was commenced by the plaintiffs as members, trustees and beneficiaries of pension plan for employees of Amherst Aerospace Inc. They allege that the applicants breached their fiduciary duties owed to the plaintiffs in connection with the pension plan. The applicants say that Ronald A. Pink, Q.C., and others of the firm, Pink Breen were partners or associates in the firm of Patterson Kitz when the latter firm were solicitors for Amherst Aerospace Inc. Amherst Aerospace Inc. is, am informed, defunct. The applicants say that Patterson Kitz received privileged information from Amherst Aerospace Inc., its officers and directors, relative to the subject matter of this action. Patterson Kitz acted for Amherst Aerospace Inc. under a, very general retainer from January, 1988, to April, 1990. On June 16, 1989, Ronald A. Pink, Q.C. and other lawyers specializing in the field of labour law, administrative law and public law, left the Patterson Kitz firm and formed Pink Breen. The applicants say, therefore, that firm ought not to be permitted to represent the applicants in this action. Applicant's Factual Position One of the applicants, Peter King, has filed an affidavit dated July 29, 1993. He and the other applicants were officers and directors of VGM Capital Corporation when it negotiated the purchase of the shares of Enheat Limited of Amherst, Nova Scotia. VGM retained Patterson Kitz to act for it, or its nominee to be incorporated, in the purchase of Enheat. The acquisition of the shares of Enheat Limited and the eventual incorporation and operation of Amherst Aerospace Inc. involved large number of lawyers of Patterson Kitz and extensive, legal services. The retainer of the firm was general (that is, the entire firm was retained) and the bulk of the work was performed by team of lawyers who specialized in commercial law. Mr. King says that an issue addressed and reviewed by Patterson Kitz related to an unfunded pension liability. He says, and there is little doubt, that members and associates of Patterson Kitz were deeply involved in the legal work of Amherst Aerospace Inc. and its operations. He says that Patterson Kitz obtained confidential knowledge concerning the Amherst Aerospace pension plan. Patterson Kitz also had an involvement in the status of the collective agreement between Amherst Aerospace and its employees. They were also involved in the preparation of detailed prospectus for filing with the Registrar of Securities under the Nova Scotia Stock Savings Plan which included statements concerning the pension plan and collective agreement. Certain other financing of Amherst Aerospace Inc. required Patterson Kitz to review the collective agreement, the pension fund and the financial background of the Company. Various partners or associates of Patterson Kitz were directors of Amherst Aerospace Inc. and of other related companies and attended various board meetings. Mr. King says that Dennis Ashworth, who was partner of Patterson Kitz at all relevant times and was also Director of Amherst Aerospace Inc., its predecessor and parent companies, has not been named as defendant. He says that he has been informed that it is probable that members or former members of Patterson Kitz who were or are partners of Pink Breen will be called as witnesses. In 1989 Patterson Kitz, was instrumental in facilitating Government guaranteed loan of $8,750,000. After Pink Breen had left Patterson Kitz that loan was called and monitor from Price Waterhouse was appointed pursuant to the loan documentation negotiated by Patterson Kitz. The actions of the monitor, according to Mr. King, will be an issue in this action. Mr. King says "it was represented" by Patterson Kitz that clients' affairs were regularly discussed at partners', lawyers' and committee meetings. The applicants have also filed the affidavit of Dara L. Gordon, partner of Patterson Kitz, and who was the "client management lawyer for Amherst Aerospace". She took instructions from "inter alia Brian Flemming and Peter King". She said that Patterson Kitz acted as general counsel to Amherst Aerospace and she and others of Patterson Kitz attended some of the board of directors' meetings. Mr. Dennis Ashworth of the firm was member of the board of directors of Amherst Aerospace; Mr. Bruce Marchand was secretary. She listed others of the firm who had worked on Amherst Aerospace matters. She said that while Ronald Pink was "informally leader" within the firm neither he nor any of the other lawyers of Pink Breen had worked on the Amherst Aerospace files. Mr. D. Stephen Rankin has filed an affidavit in which he says he became President of Amherst Aerospace and director of that Company in late 1988. He says that when he was President, "we" requested Patterson Kitz to review the collective agreement in detail and that it was rewritten by Patterson Kitz "...in order to propose possible amendments...". Mr. Rankin is not specific as to the time of the review of the collective agreement and, in particular, as to whether that occurred before or after the departure of the lawyers of Pink Breen. He is specific, however, that Patterson Kitz dealt with series of grievances filed by the plaintiff against Amherst Aerospace. He says that if contributions were not made to the pension fund, then it was on the instructions of the monitor appointed by Price Waterhouse, pursuant to documents negotiated by Mr. Dickson of Patterson Kitz prior to June 1989. Mr. Pink was discovered preparatory to this application. Alan V. Parish, acting on behalf of the applicants, has filed excerpts from that discovery transcript and letter from solicitor for the third party, Stewart McKelvey Stirling Scales; to the effect that Dara L. Gordon will possibly, and/or likely, be required to give evidence in the main trial. In Mr. Pink's tendered discovery, he confirmed that he had been partner of Patterson Kitz until June 19, 1989. There was labour group within that firm which then split off and formed what eventually became Pink Breen Larkin (Pink Breen). While partner at Patterson Kitz he was aware that work was proceeding with respect to Amherst Aerospace. His personal knowledge of the client was vague and as far as he knew neither he nor any of the labour group worked on the file. His knowledge of the relationship between Patterson Kitz and Amherst Aerospace was to the extent that "they were doing some securities work...". He said that none of the present Pink Breen members did any work on behalf of the plaintiffs with respect to the pension plan prior to late 1990. It was possible that member of Patterson Kitz from the Truro office acted in grievance taken by the plaintiff Union, but Mr. Pink had no direct knowledge of it. The plaintiff Union apparently handled its own grievances and arbitrations without legal assistance. Patterson Kitz had general policy that they would not act for client in labour matter when they also represented the Union. Mr. Pink testified at discovery that as far as he was concerned the action in question was entirely based on transaction which occurred after he had left Patterson Kitz and was not related to any activity which occurred while he and his present partners and associates were involved. The Issue On the basis of the facts adduced by affidavit on behalf of the applicants, the issue is stated as follows: Does the extensive involvement of Mr. Pink with the law firm of Patterson Kitz, the firm which acted as general counsel to (Amherst Aerospace Inc.) at all material times, and the fact that most of the lawyers at Pink Breen were formerly at Patterson Kitz, result in conflict of interest making Mr. Pink and the firm of Pink Breen ineligible to continue representing the plaintiffs in the action against the applicants and others? The Applicants' Position The applicants have especially focused on the "strong inference that lawyers who work together share confidences", mentioned by Mr. Justice Sopinka in Martin v. Gray (1990), 1990 CanLII 32 (SCC), 77 D.L.R. (4th) 249. They have said that the very broad retainer of Patterson Kitz included the review of the possibility of unfunded pension liability, review of the financial background of Amherst Aerospace Inc. and review of the pension plans and collective agreement of that Company. The nature of the solicitor‑client relationship in such broad retainer would of necessity be "sufficiently related" to the subject matter of this action so as to infer firstly that the confidences were relevant and, secondly, they were shared amongst the lawyers of Patterson Kitz. The applicants have also drawn from the fact that Mr. Dennis Ashworth, former partner of Patterson Kitz and former member of the board of directors of Amherst Aerospace, has not been joined as defendant and that is an act of favoritism arising from that relationship. In addition, the applicants say that certain former partners may be called as witnesses and, therefore, Mr. Pink will have to cross‑examine them. The applicants say that would automatically disqualify Mr. Pink if cross‑examination is necessary. (See Widrig v. Cox Downie et al (1992), 1992 CanLII 2797 (NS SC), 114 N.S.R. (2d) 320. They have submitted that there need not be factual connection between the confidential communication and the retainer from which it is sought to remove the solicitor. (See Canada Trustco Mortgage Co. v. Corkum et al (1991), 1991 CanLII 4367 (NS SC), 105 N.S.R. (2d) 230) It is therefore not necessary that an applicant prove that relevant information has been disclosed by the client to the lawyer or his or her firm; sufficient relationship only is necessary. Similarly, it is not necessary for the applicant to show that the confidences were shared amongst lawyers of the firm and will be used to the prejudice of the client; rather, the burden is on the lawyer to show by "clear and convincing" evidence that disclosure will not occur. It is not sufficient for the lawyer sought to be removed to say to the court, in effect, "trust me". That assurance would put the court "in the invidious position of deciding which lawyers are to be trusted and which are not". The applicants conclude that there are significant factual links between the current action and the previous relationship of Patterson Kitz, Amherst Aerospace and the applicants which encompass the subject matter of the current action. Mr. Pink was not directly involved in the Amherst Aerospace retainer, but his involvement in the Patterson Kitz firm, together with the extensive nature of the firm's retainer infers strongly that the affairs of Amherst Aerospace were shared within the firm and, accordingly, Mr. Pink should be automatically disqualified. Pink Breen's Position Pink Breen has submitted: (a) There was no solicitor client relationship between the applicants and either Patterson Kitz or Pink Breen. (b) The information relevant to these issues in the action imparted to Patterson Kitz or Pink Breen by Amherst Aerospace Inc. was not confidential. (c) The cause of action in the main action is unrelated to the retainer of Patterson Kitz by Amherst Aerospace Inc. (d) No risk of prejudice to Amherst Aerospace Inc. exists. Pink Breen has filed affidavits of Dara L. Gordon and Leanne MacMillan. Ms. Gordon has sworn that to the best of her information and belief no member of Patterson Kitz provided formal legal opinion concerning the financial position of the pension plans in question. She says Patterson Kitz provided no information by way of replies to lenders to Amherst Aerospace concerning the pension plans and that they provided no formal legal opinion concerning the collective agreements. She says that the policy of Patterson Kitz, which she followed, was not to offer advice with respect to employer‑employee relations to employers who dealt with unions which were also represented by Patterson Kitz. She says she reviewed the legal opinion of J. Gerald Godsoe of September 29, 1989, concerning the legality of the proposed use of pension funds by Confederation Life, but she had not reviewed any drafts of that opinion prior to September 29, 1989. The affidavit of Leanne MacMillan sets forth the notification to the applicants of the demand or demands by the plaintiffs for the return of pension funds. In addition, Mr. Pink referred extensively in both the written and oral submission to the Court to the pleadings in this action. Allegations made by the plaintiffs against the other parties which have been denied may not be relied upon as facts. will not do so. The Law In Martin v. Gray Mr. Justice Sopinka addressed the tests to be applied in determining whether there is disqualifying conflict of interest requiring that solicitor not be permitted to act for particular client. He discarded the probability of mischief test as the question of the use of confidential information involves the examination of matter not usually susceptible of proof. Rather, he said that the test "...must be such that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur. That, in my opinion, is the overriding policy that applies and must inform the court in answering the question: Is there a disqualifying conflict of interest?" Mr. Justice Sopinka continued: Typically, these cases require two questions to be answered: (1) Did the lawyer receive confidential information attributable to solicitor­and‑client relationship relevant to the matter at hand? (2) Is there risk that it will be used to the prejudice of the client? Mr. Justice Sopinka went on to explain the dilemma involved in the first question. That is, "in order to explore the matter in depth may require the very confidential information for which protection is sought to be revealed". Before dealing with that question, however, there is preliminary point to be decided: Was there solicitor and client relationship between Patterson Kitz and the applicants? It is only after that question has been answered that it is necessary to proceed to determine whether the information was relevant to the matter at hand. As Mr. Justice Sopinka went on to say, ...once it is shown by the client that there existed previous relationship which is sufficently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. (emphasis added) It seems to me that the threshold question has to be whether the relationship existed. The applicants were each involved in VGM Capital Corporation: Mr. King as President, Mr. Flemming as Chief Executive Officer and Chairman of the Board and Mr. Rankin as Director. VGM first retained Patterson Kitz. Patterson Kitz, on the instructions of VGM, incorporated Amherst Aerospace Acquisition Inc. for the purpose of purchasing the assets of Enheat. (The various corporations had name changes which need not be detailed for the purposes of this decision.) The correspondence exhibited to me in the affidavit of Peter King shows that Patterson Kitz corresponded with Messrs. Flemming and King, but the contents of that correspondence is clear that it was directed to them as directors. There is no evidence showing personal retainer of Patterson Ritz by the applicants. Mr. Justice Nathanson of this Court dealt with an application for an order declaring that counsel were disqualified b9 reason of conflict of interest from acting for the Royal Bank of Canada in the petition for the bankruptcy of Philip M. Robinson. (See Re Robinson (Bankrupt) (1992), 114 N.S.R. (2d) 72) Mr. Robinson was the operating mind of P.M. Robinson Associates Limited or Eastland Group Limited and in that capacity had instructed the solicitors in question. At p.74 Mr. Justice Nathanson said: The parties to the prior relationship and the parties to the present relationship must be the same. Any confidential information received by the law firm arising from its involvement in Phase of the Spring Garden Place project was received from the law firm's client which was P.M. Robinson Associates Limited or Eastland Group Limited. Robinson was not the client. Therefore, there did not exist a solicitor-­and‑client relationship between him and the law firm. The law firm did not receive confidential information attributable to solicitor‑and-­client relationship with Robinson. Because in law corporation is distinct from, and different from, its owners or controllers, Robinson cannot stand in the stead of the corporation he controlled with respect to the relationship between the law firm and that corporation as its client. Chief Justice Glube addressed similar question in Widrig v. Cox Downie et al. She said at p.327: In the present situation, all of the dealings with Mr. Widrig except for his wills and the purchase of property and possibly the incorporation of Pursuit resulted from his being employed by Pursuit 1987. As an employee of Pursuit 1987, he was not dealing with MCR on solicitor‑client basis nor in his personal capacity. Even if it could be said that Reardon was acting for Widrig when he incorporated Pursuit, there is no evidence of anything arising out of that retainer or in the preparation of his will or his wife's will which is relevant to the present action. Martin and Gray does not stand for the proposition that once firm has acted for person they can never act against that person. Although the present case has some similarities to Corkum, in my opinion the case of Robinson is closer to the present facts. find there is nothing in the previous relationship sufficiently related to Wrathall's retainer by the Claims Fund and Martin to lead me to infer that relevant confidential information was obtained which could be imparted to the defendant. find there is no confidential information relevant to the present action which has come to MCR as result of members of that firm dealing with Mr. Widrig in his capacity as an employee of or as the President of Pursuit 1987. also find that there is no information which was imparted to MCR which is relevant to this action. The situation addressed by Chief Justice Glube is to be contrasted with that addressed by Goodfellow, J. in Canada Trustco Mortgage Co. v. Corkum et al. The relationship of Mr. Corkum with Patterson Kitz in that case had been personal and diverse. It had involved many personal aspects of the applicant's affairs. Mr. Justice Goodfellow said: Here the plaintiffs law firm acted extensively for Eric J, Corkum in his personal, financial and business endeavours over such prolonged period that, in my view, reasonably informed person would not be satisfied that no use of confidential information would occur. reasonably informed person knowing of the extent of the plaintiff's law firm's confidential knowledge of the personal, financial and business affairs of Eric J. Corkum, which would have been imparted by him over lengthy period of time on such variety of matters, all in confidence, that sooner or later such knowledge would surface as detriment to Eric J. Corkum. Any client, including Eric J. Corkum, must be secure in the knowledge that revelations made in confidence cannot, without waiver, come back to haunt him inadvertently or otherwise. There is no evidence before me that relationship such as that which existed between Mr. Corkum and his law firm existed between the applicants, or any of them, and Patterson Kitz. have concluded that there is no solicitor and client relationship between the applicants and the Patterson Kitz firm, either before or after the formation of the Pink Breen firm. The solicitor and client relationship was with VGM or Amherst Aerospace, or any of their other corporate names. am not aware of any case in which the solicitor‑and­-client confidence of corporate client automatically extended to its directors. The Nature of the Information The second aspect of Mr. Justice Sopinka's first question requires that an applicant raise question as to whether the lawyer received confidential information relevant to the matter at hand. What is the confidential information? The essence of this action is the alleged improper withdrawal and investment of pension funds. There is nothing in the evidence before me which would suggest that the pension plan itself was of confidential nature. Similarly, the status of the collective agreement is not confidential. The revelation of information concerning the pension plan or the collective agreement would create. no dilemma. have concluded that the applicants have not. passed the. threshold of showing that there is any confidential information concerning these items over which solicitor and client confidentiality existed. It seems to me that an applicant in case such as this one ought to be expected to lay foundation by giving to the Court some hint as to the type of information sought to be protected, without exposing the client to the dilemma described by Mr. Justice Sopinka. The applicants in this matter have considered the extremely wide range of services rendered to Amherst Aerospace Inc. and have drawn the conclusion that because of the diversity of services rendered there must be substantial relationship between what was done by the Patterson Kitz and the matters in question in this action. That is too great an inference to be drawn. The applicants should show by fact or even by reasonable inference that the substance of the current action was broached during the Pink Breen tenure at Patterson Kitz. That is, the applicants ought to be able to suggest that the seeds of the alleged scheme were sown during their tenure. There is no such evidence before me. The evidence also points to conclusion that the arrangements made with respect to the withdrawal of the pension funds occurred after the Pink Breen departure from the firm of Patterson Kitz. conclude that the applicants have failed to achieve positive response to either of the two aspects of Mr. Justice Sopinka's first question. If my conclusions are correct, then it is not necessary to consider Mr. Justice Sopinka's second question; i.e., is there risk that the information will be used to the prejudice of the client. Witnesses The applicants have suggested that a number of former partners of Pink Breen in the Patterson Kitz firm may be either subject to discovery or may become witnesses during the trial. Such a possibility does not disqualify Mr. Pink. (See Phoenix v. Metcalfe, 1974 CanLII 1704 (BC CA), [1974] W.W.R. 661) Costs am not at all critical of the applicants for having brought this application. The material produced before me and the arguments made had to be done to clear the air. Given the substance of the material and having heard the arguments and submissions, feel that am now in the position of the reasonably informed public. In that capacity, I find that there is no conflict of interest and that Pink Breen will be permitted to continue to act. But it took this appliction to put me into position to reach that conclusion. It was reasonable exercise. There will, therefore, be no extra costs awarded with respect to this matter and the costs will be costs in the cause. Halifax, N.S. J.

The solicitor for the plaintiff union had been a partner of the law firm which incorporated the defendant company and was under a general retainer to them. Several of the defendants made application to have the plaintiff s solicitor removed as solicitor of record claiming this was a conflict of interest. Dismissing the application, that the test in such circumstances is whether the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur. To do so it must be shown that a solicitor client relationship existed. There must not be a danger of the confidential information coming back to haunt the client. The court found that such a relationship did not exist in this instance. In addition, the applicant must demonstrate that the solicitor received information which is relevant to the matter at hand. The court found no such evidence of this possibility. It is no bar to representation by a solicitor that some former partners at a previous firm will be examined for discovery or called to testify.

c_1993canlii4476.txt

GEATROS J. 1996 S. N. No. 105001 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: PROVINCE OF NOVA SCOTIA FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT SUBSECTION 41(1) IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 41 OF THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT S.N.S. 1993, C. ERRATUM TO DECISION HEARD: At Sydney, Nova Scotia, before the Honourable Justice A. David MacAdam, on June 27, 28, 1996 and July 8, 1996 DECISION: August 1, 1996 COUNSEL: Brian W. Downie James L. Chipman for the Appellants Sandra MacPherson-Duncan, for the Medical Society Gary Corsano Nichole Collier, for Cape Breton Regional Hospital Blaise MacDonald for the Respondents ERRATUM Page 50, line 6, and line where it reads "personal" should read "personnel". Page 52 paragraph 2, line 12 where it reads "personal" should read "personnel". Halifax, Nova Scotia November 14, 1996 1996 S. N. No. 105001 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: PROVINCE OF NOVA SCOTIA FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT SUBSECTION 41(1) IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 41 OF THE FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT S.N.S. 1993, C. HEARD: At Sydney, Nova Scotia, before the Honourable Justice A. David MacAdam, on June 27, 28, 1996 and July 8, 1996 DECISION: July 9, 1996 Orally RELEASE OF ORAL: August 9, 1996 COUNSEL: Brian W. Downie James L. Chipman for the Appellants Sandra MacPherson-Duncan, for the Medical Society Gary Corsano Nichole Collier, for Cape Breton Regional Hospital Blaise MacDonald for the Respondents MacAdam, J. In these reasons, the families of Ronnie White, Marion Godin, and Theron Cormier are individually referred to as the "White family," the "Godin family," and the "Cormier family", respectively, and collectively, as the "families"; the appellants, Doctor B. Foley, Doctor S. Hasan, Doctor P. Jackson, Doctor M. Malik, Doctor S. Sharma, and Doctor J. Wesolkowski are referred to as the "appellants"; Doctor Stan P. Kutcher and Doctor Vivik Kusumakar are referred to as the "authors" in respect to report dated February the 7th, 1996; the Cape Breton Regional Hospital is referred to as the "Regional Hospital"; the Medical Society of Nova Scotia is referred to as the "Intervenors". Background Between June and November 1995 member of each of the three families was found dead, apparently at their own hand. During this period, members of the staff of the Regional Hospital met with each of the families. Ms. MacIsaac, Chief Executive Officer (C.E.O.) of the Regional Hospital, testified to meeting on November 23rd, 1995, attended by some of the hospital staff with the Cormier family, during which it was evident the family were not satisfied by the answers they were receiving and were requesting an external review of the circumstances surrounding the death of Mr. Cormier. On November 26th, 1995, there were also meetings of hospital staff with the "White Family" and separately with the "Godin family" who also expressed dissatisfaction with the answers they were receiving. As result, on November 27th, decision was made to review the circumstances of all three deaths. Following telephone conferences with Doctor Kutcher, Ms. MacIsaac, on December 1st, 1995, wrote to him: "In these cases the individuals were receiving care within the Mental Health System and Drug Dependency. In two cases, the individuals were receiving services for many years, the third person for year. The nature of the family complaints in these cases seem to be directed at the psychiatrists involved and their management of the cases. For our purposes, we would request review that would involve patient records, policies and practices, interviews with physicians and staff involved and interviews with family of the deceased patients." Doctor Kutcher, by letter dated December 4th, 1995, responded outlining his understanding of the mandate, stating it was to be review of cases of three individuals who had suicided and who were receiving care within the Mental Health System and Drug Dependency. He noted they would be considering the actions, roles, and responsibilities of the deceased patients/clients, hospital staff, physicians, families of the deceased, and would be reviewing and assessing the nature and adequacy of patient records, hospital policies and practices as they related to the cases. Ms. MacIsaac, in confirming Doctor Kutcher's understanding of the mandate, by further letter, dated December 11th, 1995, also included summary of Terms of Reference prepared in respect to the proposed review: 1) Review the cases of three individuals who have suicided and who were receiving care within the Mental Health System and Drug Dependency. 2) To review the roles and responsibilities of individuals involved in the cases, i.e., hospital staff, physicians, families. 3) To review patient records and hospital policies and practices as they relate to these cases. 4) To provide written report of the review to the hospital's C.E.O. Ms. MacIsaac testified that around December 19th, 1995, she polled the executive committee of the Board of the Regional Hospital, for the purpose of establishing hospital committee, in accordance with s. 60 of the Evidence Act, R.N.S. c.154, to deal with the matter of the review. It is the formation of this committee that was subsequently ratified by motion of the executive committee at meeting on January 12th, 1996. She testified the purpose in establishing this committee was to invoke s. 60 of the Evidence Act and the committee was to include herself, the authors, and other staff members. In or about mid-December, 1995, the appellants, being physicians with privileges at the Regional Hospital, were approached by Ms. MacIsaac to participate in the review. The Regional Hospital, through Ms. MacIsaac, assured them confidentiality would be honoured. They were told the authors were preparing report for the purpose of internal evaluation, education and improvement of hospital care and practices. The appellants were consequently assured the report would be used as an internal document only, thus ensuring the confidentiality of their participation in the process. The authors attended in Sydney on December 19th and 20th, 1995, and in addition to meeting with Ms. MacIsaac, conducted interviews with the appellants, the families, and other staff of the Regional Hospital, for the purpose of completing their investigation and compiling their report. Prior to conducting the interviews, the authors met with hospital administrative group consisting of Ms. MacIsaac, Ms. Richard, Chief of Patient Services, Doctor Jackson, Medical Director of the Regional Hospital, and Doctor Sharma, Medical Director of the Department of Psychology. Following this initial meeting, the authors proceeded to complete the interviews. number of the appellants individually participated in interviews with the authors and apparently communicated confidential information about their patients and provided analysis and criticisms about their colleagues and themselves. Once the authors completed their information-gathering, they compiled report which was then forwarded to the Regional Hospital to the attention of Ms. MacIsaac. Consistent with the assurances it had earlier provided to its senior staff, the Regional Hospital declined to release the report. On January 29, 1996, Robert Chisholm, M.L.A., made application to the Department of Health, of the Province of Nova Scotia, to obtain the report, pursuant to the Freedom of Information and Protection of Privacy Act, S.N.S. 1993 c.5, (herein "the Act"). This application was to access the record of "psychiatric review of the cases of patients treated at the Cape Breton Regional Hospital in 1995 who later committed suicide...". The Department of Health transferred the request, pursuant to the Act, to the Regional Hospital. The report was completed on February 9th, 1996. Pursuant to s. 20(5) of the Act, the Regional Hospital released what it called "summary of the review team report". With the Hospital\'s refusal to release the report itself, Mr. Chisholm, on March 11th, 1996, filed a request, under the Act, for a review of this decision by the Regional Hospital. The Review Officer, Mr. Fardy, conducted the review. Ms. MacIsaac, on April 25th, 1996, wrote individually to number of the appellants indicating she was not allowing disclosure of the report because it was an internal review of practices and procedures and to be used for education and improvement of hospital services and protected from production by s. 60 of the Evidence Act. On May 6, 1996, Mr. Fardy released his report recommending the Regional Hospital disclose the report, subject to the editing of certain patient and other information. On May 10, 1996, Ms. MacIsaac again wrote to the appellants, saying: "The Cape Breton Regional Hospital has agreed to follow the recommendations of Mr. Fardy, and in addition, is prepared to release the report in its entirety without the severance of any parts as suggested by Mr. Fardy. Accordingly, enclosed please find copy of letter from Vincent J. MacLean, Chairman of the Board of Directors of the Cape Breton Health Care Complex, in which Mr. MacLean informed Mr. Fardy of this decision and seeks further directions on how to proceed." Pursuant to s. 41(1) of the Act, the appellants have appealed the Regional Hospital\'s decision to the Nova Scotia Supreme Court. The Appellants During the course of the two and one-half days of evidence, the Court heard from number of witnesses concerning, in respect to the appellants, the nature of assurances received, their view of peer review and its importance to health-care in the Province of Nova Scotia. With this in mind, will briefly review the evidence of the various doctors as well as some of the other witnesses who testified. Doctor Jackson testified that because of questions raised by the families as result of their individual tragedies, the two authors had been invited to examine mental health services in the Regional Hospital. During his meeting with the authors, on December 19th, 1995, the nature of the problem was outlined and it was stated the report was to be confidential and to be used by the Regional Hospital for such action as deemed necessary. He says the matter of confidentiality was discussed, including that the report was only to be delivered to Ms. MacIsaac. He testified "it was understood" the interviews with the physicians would be confidential. Doctor Jackson was referred to the summary of the review team report, dated February 23rd, 1996, prepared by Ms. MacIsaac and the administrative group, and expressed his concurrence with the concluding paragraph that reads: "The report of Drs. Kutcher and Kusumakar cannot be released in its entirety because it was prepared for the purpose of internal evaluation, education and improvement of Hospital care and practices, and contains confidential patient information." Doctor Jackson testified he was surprised when he learned the Regional Hospital had agreed to release the report, adding his belief the hospital did not understand the "issue of confidentiality". In respect to the impetus for the report itself, he noted that he and Doctor Sharma had met with the "Cormier family" on November 23rd, 1995, at which time it was suggested, because the family were not satisfied with the answers they were receiving, the possibility of their obtaining an external review. He acknowledged the purpose for obtaining the external person or review was in order to provide answers to the questions then being raised by the "Cormier family." Doctor Sharma testified he was present at the meeting on December 19th, 1995, with the authors as well as subsequent meeting on December 20th when he and Ms. Maclsaac met with them in "wrap-up session." He says it was understood there would be one copy of the report, to be forwarded to the C.E.O., and to be used in implementing any changes or recommendations suggested by the authors. He also agreed the last paragraph of the summary stating the purpose of the report is consistent with his understanding at the time. He testified the information he provided to the authors was on the assumption it was to be confidential. He also stated his agreement with the terms of reference attached to Ms. MacIsaac's letter of December 11th, 1995. He said he was shocked, surprised and disappointed when he learned the hospital had agreed to release the report. He testified this decision was made against the recommendations of senior management at the Regional Hospital and contrary to assurances given to the various persons who had participated in the preparation of the report. On cross-examination by counsel for the families, Doctor Sharma acknowledged that obtaining answers for Ms. Cormier was one of the factors that had lead to the creation of the external review. Doctor Sharma testified he was not aware the authors had been appointed committee of the hospital nor of his membership on such committee. Doctor B. Foley, staff psychiatrist at the Regional Hospital, testified he was approached, in December 1995, and advised there was to be "a peer review of mental health services in respect to the three suicides and the reviewers were to be the authors." He says he provided information, upon receiving assurances it was to be treated as part of peer review and the information was to be considered confidential. He said he was surprised and disappointed when he learned of the decision by the Regional Hospital to release the report. Doctor Foley testified that his understanding of the nature of the report followed discussions with Doctor Kusumakar and Doctor Sharma and it was Doctor Sharma who told him it was "peer review and confidential". Doctor S. Hasan testified he is also psychiatrist on staff at the Regional Hospital. He says he was approached in December 1995 and advised by Doctor Sharma that there was to be confidential peer review. He says he provided information to the authors on the basis it would be held in the strictest confidence and the only person receiving the report would be the Regional Hospital C.E.O.. He, like Doctor Foley and the other appellants, indicated that the concluding paragraph of the summary, was consistent with his understanding. He says he was very upset and felt let down when he learned the Board had decided to release the report. Doctor N. Malik testified he is staff psychiatrist with the Regional Hospital and that around December 19th, 1995, he was informed by Doctor Sharma there was to be review carried out at the Regional Hospital. He testified he was given to understand there would be two psychiatrists from Halifax who would be reviewing policies and procedures and as well discussing certain cases at the hospital. He says he understood it would be peer review and was not to be made public. He says when he attended the interview with Doctor Kutcher, he was assured the purpose was peer review for the hospital and any information provided would be treated confidentially. Doctor Malik testified that during the interview he gave personal information, patient information and professional discussions that he would not have provided if he had known the information would be made public. When he learned of the decision by the Board to release the report, he felt "shocked and honestly betrayed". He says all along he had been informed the report was to be "peer review" with the information only to be provided to the Regional Hospital and not to be made public. In response to counsel for the families, he stated Doctor Kutcher assured him at the outset that the authors had been engaged by the Regional Hospital to conduct "peer review" and the information would be treated confidentially. The Regional Hospital Board and Administration The only person from the administration of the Regional Hospital to testify was Mary MacIsaac, who was called by the appellants. She was the only witness, apart from some of the appellants, who had administrative duties. As she stated, she was "the Board's person in the hospital". Her responsibilities included the day to day running of the hospital, with responsibility for its overall management. She said that in the meeting with the authors, on December 19th, 1995, the discussion included an understanding the report would be for the Regional Hospital and would otherwise be confidential document. She testified that although resolution approving the status of the hospital committee, pursuant to the Evidence Act, was passed on January 12th, 1996, this was ratification of the poll of the executive committee that she had conducted on or about December 19th, 1995. She testified the summary of the report was prepared by the administrative group consisting of herself, Doctors Jackson and Sharma, and Ms. Richards. Accurately reflected in the last paragraph of the report was the fact it could not be released in its entirety because it was prepared for internal evaluation, education and improvement of hospital care and practices and as well contained confidential patient information. Ms. MacIsaac was referred to letter, from the appellant's counsel, dated May 9th, 1996, outlining the position of the appellants in respect to the doctors' privilege in relation to the report. She indicated her agreement with counsel's summary of the damage to the peer review process at the Regional Hospital in the event the report was to be made public. In response to counsel, she stated her position as C.E.O. is to bring to the Board the pros and cons, as well as the implications, arising from any decision under consideration by the Board. She says she does this; but, when the Board has made its decision, her responsibility is to carry out that decision. With respect to the decision by the Board to release the report, she testified she advised them their decision would impact on two communities, namely the community at large and the community of staff within the Regional Hospital. She said that following the decision by the Board to release the report, she met and advised the administration staff of the Board's decision. She indicated the reaction of staff was one of concern and shock and some interpreted that they had been betrayed. In her evidence she agreed that recommendations on peer review may themselves not be confidential, and although discussion of the care of particular patients would be considered confidential, the patient would be entitled to this information. She also testified that discussions of evaluating care are outside and different from the actual care itself. She responded to counsel she has never been involved in circumstance where part of peer review had been severed and disclosed. She agreed she might have given some of the information contained in the report to the families but regarded the report itself as being confidential. Donald Ferguson, Vice-Chair of the Board, and member of the Executive Committee, testified to the call from Ms. MacIsaac on either December 17th or 19th, 1995, in respect to the establishment of the confidential committee to review the three cases, to review records and procedures of the people involved, to review responsibilities of persons involved, and to provide written report. The committee, Mr. Ferguson says, was to be composed of two unnamed psychiatrists from Halifax, Doctors Sharma and Jackson, Ms. Richard, who was the assistant C.E.O, and Ms. MacIsaac. He says he understood the report was to be confidential document, and that later, on January 12th, 1996, he moved the resolution at the executive committee meeting ratifying the establishment of the committee. The Families On behalf of the "White family," Cindy MacDonald testified that on June 21st, her bother, Ronnie White, was taken to the Regional Hospital after having stabbed himself in the stomach. She says Doctor Wesolkowski apparently did not have her brother's records when he spoke to him. Her brother was not admitted, although she says she begged the doctor to keep her brother at the hospital. Two days later, apparently having taken some pills, put down, as she says, "to an overdose", he was taken to the Northside General Hospital but released later that day. Between June 25th and October 31st, 1995, he went missing and his body was found on October 31st, he having hanged himself. She met with the authors and they indicated they were doing review. After about two hours, she and the other members of the family present were told the report was to be forwarded to Ms. MacIsaac. She says, prior to this time, and in speaking to Ms. MacIsaac, there was no mention they would not be obtaining copy of the report. In replying to counsel she asserts the family has right to know what happened to her brother. On cross-examination by counsel for the appellants, and after acknowledging Ms. MacIsaac never said the family would be getting the report and it was just an understanding, she added, that Ms. MacIsaac told them once the report was received by her she would contact them and let them know whether or not the family would receive the report. She indicated the only assurances they would be receiving the report were from her M.L.A., Doctor Stewart, the then Minister of Health, who had visited her home. Lana Cormier testified about the death of her son who had been treated over period of some 11 months by Doctor Hasan, while an inpatient, and Doctor Malik, while an outpatient. After his death, she met Doctor Malik on number of occasions. On November 23rd, 1995, she met with Doctors Jackson and Sharma and Ms. Richards. She testified that at the end of this meeting she was told her next step, if she was not satisfied, was to request an independent review of her son's medical file and Doctor Sharma said she could pick any psychiatrist she wanted to conduct the review. She testified she was suspicious because she had heard four different opinions from four different doctors. She expected someone to actually tell her what had happened to her son. She wanted the file examined and determination made as to whether the treatment he received was adequate. She says it was following the making of these comments that she was given the opportunity for an independent review. She says Doctor Jackson, on December 4th, 1995, told her Doctor Hirsch would be coming and about four days later he called again saying there would be two psychiatrists from Halifax and they would be reviewing not only her son's death, but also two other cases. The question of who would be receiving the report was not discussed at this time. She stated it didn't dawn on her to ask who was getting the report because she was the one, as she understood, who had made the request in the first place. In response to counsel for the appellants, she repeated that having been told she could request an independent inquiry, she assumed without having to ask, she would be obtaining copy of any report. It was during the interview with Doctor Kutcher and, after having asked when the report would be ready, she was told it was being delivered to Ms. MacIsaac. She responded to counsel for the appellants she expected to receive the report, or at least the section dealing with her son, right up to the announcement by the Regional Hospital that it would not be disclosing the report. In response to the Court, she said she understood the report to deal with what had happened to her son and that it would include the care, diagnosis and treatment given to him. This is what she says she anticipated receiving. Dorothy Barrie is the sister of Marion Godin, who hung herself on November 17th, 1995. Following her sister's death, she, and other members of the family, raised an issue as to the timeliness of the referral of her sister from the Northside General Hospital to the Regional Hospital. She says she met with Doctor Foley but was not satisfied with the answers he provided. Similarly, she was again not satisfied after further meeting two days later. She then called Ms. MacIsaac and requested to talk to Doctor Wesolkowski. meeting was arranged attended by Ms. Richards, Doctors Wesolkowski, Jackson and Sharma, and by approximately fourteen members of her family including her sisters, their spouses, her brothers, nieces and daughter of the deceased. Again, following this meeting, she and the other family members were not satisfied with the answers they had received. Following protests and the writing of letters, she learned two doctors were coming from Halifax. She agreed, other than what she was told by Doctor Stewart, no one else said anything about her receiving the report. Peer Review in Health Care On the issue of "peer review," which is central to the position of the appellants on this appeal, note the evidence of Anne McGuire, Chief Executive Officer, of the Nova Scotia Hospital. Ms. McGuire testified to her experience as surveyor for Canadian Health Services Accreditation and in particular, her experience with respect to the presence and use of peer review as tool and mechanism in evaluating hospitals and their quality assurance and management systems. One of the areas examined, in the evaluation of hospitals, relates to the level of quality assurance. She testified that peer review is an essential component of these quality assurance programs. As C.E.O. of the Nova Scotia Hospital, she has observed benefits gained from peer review and noted willingness by all disciplines to sit together and discuss performances both of staff and of hospital policies and procedures. She says the Nova Scotia Hospital has responded to the recommendations arising out of these peer reviews, with the net result being an improvement in the quality of care. She described these reviews as also having an educational value. Following publication of the recommendations of Mr. Fardy, the physicians at the Nova Scotia Hospital indicated to her the possibility of their not participating in future written peer reviews pending determination of the question of confidentiality in respect to these reviews. She says the issue is serious concern to the Board at the Nova Scotia Hospital. She agreed the patient is entitled to know how they were treated, saying patient treatment must be on the health record, but adding, however, that what is included in the peer review document, as it relates to that treatment, should not be made available. It is not so much the treatment, as the discussions surrounding the treatment, which should be treated as confidential. Any critical analysis of whether there should have been other treatment is part of the peer review process and part of the information she feels, under peer review, should be treated as confidential. Doctor Cynthia Forbes is President of the Nova Scotia Medical Society. She said some physicians have indicated to her an intention to refuse to participate in peer reviews until the question of confidentiality has been settled in this proceeding. She said confidentiality is essential and affords physicians with an opportunity to speak openly and freely with the ultimate goal of achieving an improvement in health care. In response to counsel for the families, she said there are other mechanisms available to the families to answer their queries on the care and treatment of the three deceased. Peer review is an educational tool and confidentiality should not be grounds for suspicion by family or members of the public. She stated it is regrettable if peer review report is used for the purpose of providing answers to family concerns. She did acknowledge, to counsel for the intervenors, that she has never, in her experience of peer reviews, seen where people outside the institution have been interviewed as part of the process. Doctor Jackson testified peer review is process whereby colleagues sit down and discuss topics of interest. He said it is an educational process for the purpose of reviewing whether treatment and care could be done more effectively and, as such, is form of quality control. Participants, since the process is confidential, are able to speak freely and openly. In the opinion of Doctor Jackson, if the decision of the Board to release the report stands, there will be very considerable reluctance on the part of physicians to take part in future peer reviews. Doctor Sharma testified peer review is process during which physicians look at the delivering of medical services and examine the performance of the physicians as well as themselves. Physicians are prepared to criticize themselves, and each other, in order to ensure better service for the patient. In doing so, they are prepared to be candid and open on the assumption the process will be confidential. Doctor Sharma stated that if the decision by the hospital Board to release the report stands, although from an ethical point of view peer review will continue as part of every day practice and physicians will continue to participate, they will be more guarded and circumspect. Medical service will no longer receive the benefit of full, frank and open participation by doctors and presumably will thereby suffer. Doctor Foley testified peer review is critical analysis and evaluation of patient care. He described it as confidential and privileged process carried out in confidential manner in order to ensure critical self-analysis as well as analysis of the performance by colleagues. With respect to his participation in the review conducted by the authors, he noted he provided patient information, personal information and professional information and opinion. Patient information, he defined, is information that would be available in the medical record of the patient. Personal information is information related to himself or his colleagues. Professional information is speculations, and criticisms of performance. He stated he would not have provided this information if he believed the report would be released outside the hospital. The process of peer review is critical review of care and systems and is more likely to be achieved, in the opinion of Doctor Foley, in an environment of confidentiality. In response to counsel, he stated that if the decision of the Board stands, there will be an adverse impact on peer review and it will no longer be as frank and as candid as it has been in the past. In respect to questions of confidentiality, as they relate to peer review, he testified, on cross-examination by counsel for the families, that the information he provided included his opinions and speculations as well as his involvement in one of the cases. Doctor Hasan testified peer review means that in confidence colleagues can discuss performance with view to educating and enlightening participants on the best means of providing patient care. In peer review, participants criticize both self and other colleagues and discuss hypotheticals. He testified that if the decision of the Board stands, he will not, in the future, be as critical of self or others in the realization that what he may say could then become public information. Doctor Malik testified peer review is critical analysis and evaluation of performance and decisions by other persons with similar professional expertise and background. The purpose, in his view, is to enhance the quality of care and involves critical analysis, not only of self, but also of other colleagues. He also testified that if the decision of the Board to release the report stands, the hospital will suffer and there will be reluctance, by participants in future peer reviews, to advance questions and concerns, knowing they may later become public. In response to counsel for the appellants, he stated patient information would extend beyond what is seen on the patient's hospital chart. Patient information is the information regarding the particular case, agreeing it is confidential to the patient. The second type of information he provided related to self-critical analysis of himself and colleagues. The third type of information he says he provided were comments concerning the practices and policies of the Regional Hospital. Ms. MacIsaac testified peer review is both ongoing in hospitals and is an important part of quality management and assurance. Peer review involves an examination of the quality of care for the purpose of improvement and to locate gaps in the hospitals policies and procedures. Review can take number of forms, including performance appraisals, reviews by two peers of their respective performances or reviews of particular case. Peer review is confidential process carried out to achieve quality care and management improvement and is designed to permit participants to be both up-front and willing to criticize colleagues as well as policies and practices within the hospital. The objective is to achieve an improvement in patient care. There is an additional educational purpose to the process. She testified when she advised the administrative group that the Board had decided to release the report, she was informed peer review would be in jeopardy at the Regional Hospital. Doctor Douglas E. Sinclair is Vice-President of medical services at the Q.E.II Health Centre, in Halifax. He was qualified as an expert in the field of hospital administration, peer review and quality assurance programs. He says the provision of quality patient care is the ultimate goal of any health-care institution. In his written report, Dr. Sinclair says: "Peer review and quality improvement activities conducted in the quest for quality patient care are result of the collaborative efforts of all hospital staff. ... Peer review and quality improvement activities provide structured approach to considering all aspects of patient care with the expectation that it will result in improved care. Because of the nature of the data collected all such information is highly confidential and sensitive. ... It is difficult for hospital management and lay board members to ascertain whether or not the care provided by specialist staff meets acceptable standards of practice. Therefore; quality and peer review activities, such as the Queen Elizabeth II Health Sciences Centre Clinical Quality Management Committee (formerly Clinical Appraisal) and its sub-committees in our hospital setting requires the involvement of these specially prepared individuals, who are involved in providing care, to appraise whether or not the care that was and potentially will be provided by the hospital meets an acceptable standard. Peer review activities, especially those of physicians, who are not employees of the hospital depends on the assurance that all deliberations, review activities and performance information will be kept in the highest degree of confidence. ... Confidentiality and legal immunity from discovery is the foundation to all quality and peer review activities within the facility. For ultimately self-regulating professionals, such as physicians and other health-care professionals to participate frankly and honestly in hospital sponsored review activities legal protection of clinical and peer review activities must be preserved and strengthened. Any weakening of the legal protection now provided would ultimately result in the collapse of all quality and peer review activities currently conducted within our facility." In his oral testimony he stated, peer review is tool and component of quality management and is necessary in order to ensure to the public the maintenance of quality care. He said confidentiality is fundamental to peer review as it affords an opportunity for frank and open discussion by the various participants. He also noted concerns have been expressed by staff at the Q.E.II on the question of the confidentiality of future peer reviews. He testified doctors are committed to the process of peer review, in part because they are conducted in confidence and, in his opinion, the disclosure of the authors report will "destroy peer review in the Province of Nova Scotia". He says because hospital boards are composed of lay persons, it is necessary for them to rely on medical staff in order to ensure quality patient care. In response to counsel for the families, he said physicians in the critical care department of the Q.E.II have suspended peer review pending the outcome of this case. Doctor Sinclair repeated that although physicians are strong believers, they are extremely concerned with the question of confidentiality. Although the time period for filing written reports has not yet arrived, Doctor Sinclair says they have put him on notice that pending the determination of the issue of confidentiality for peer reviews, they might not be prepared to submit these reports when they become due. The other "qualified" expert testifying was Doctor Victor McLaughlin, Executive Director of the Atlantic Provinces Medical Peer Review. He also was qualified as an expert in peer review and testified it is process whereby one segment of the profession is examined by other members of the same segment. In his written report he says: "WHAT IS PEER REVIEW? The words simply mean that the actions of members of one segment of our society are examined by others of that same segment. In the context of health services the term is used to mean the review of the work done by health professionals carried out by others who do the same type of work. Because of the complexity of the work done by some of these professionals it is recognized that only their peers are in position to make appropriate judgments on its quality. Peer review is one of number of techniques that are used to verify that the quality of health services provided to the public are at satisfactory level and to determine methods of improvement. It is not simply an examination of knowledge or an evaluation of clinical or technical skills. It is program to evaluate performance." In discussing the importance of confidentiality in peer review, Dr. MacLaughlin, in his written report, continues: ... As the practice of medicine becomes more complex and more specialized, the individual physician becomes more dependant upon his colleagues. The process of continuing education and the process of determining whether or not services being provided are at satisfactory level requires regular reassessment. Sometimes this can be done by self-assessment, but often it is necessary to have one's work assessed by peer in order to obtain objectivity. In short, the entire process whereby person becomes physician and practiscs (sic) medicine creates mindset to assist other physicians and not to do anything which may harm him. Intellectually, physicians realize that there is need to analyze the work of the profession in critical way, but they will do only if they feel confident that it is going to be used only for the betterment of the profession and its ervice (sic) to the public. On the other side of the coin, in the process of Peer Review the individual physician must allow his peers to examine his dirty linen, tell him how dark is the shade of grey, and how he can make it cleaner. ... Peer Review is process in which many, if not most, will participate only if they believe that they are not exposing themselves to an unacceptable risk. They must believe that their soul-searching is behind closed doors and will not be used to destroy them. Not only must it be confidential, but the physicians must feel secure with that confidentiality. IMPORTANCE OF PEER REVIEW TO HOSPITALS. Hospitals, as corporate citizens, have responsibility to see that the care that they provide to the public is of the highest quality possible. No hospital can maintain its accreditation without quality assurance programs being carried out on regular basis ... quality assurance programs also involve peer review in many different forms. All of the professional people in the hospital should be carrying out peer review on regular basis. DOES THE PUBLIC HAVE AN INTEREST IN PEER REVIEW? ... the public wants to see that the hospital to which it will turn for emergency health care has three year accreditation and it wants to know that the Accreditation Council has checked to see that the quality assurance programs are in place. Peer review is part of those quality assurance programs. Does the public have an interest in peer review? Yes, it does." His report concludes by asserting the disclosure of the authors report can reasonably be expected to result in similar information no longer being supplied by physicians, and that confidentiality is necessary condition for continued participation, by Doctors, in peer reviews. Although the Atlantic Provinces Medical Peer Review is primarily involved in the examination of physician practices, outside the hospital setting, Doctor McLaughlin testified, peer review in the hospital setting is itself important because of the changes regularly occurring in the field of health services and the need for examination, analysis and review to ensure that the services being provided are the best they possibly can be in the circumstances. He notes that failures are inevitable; however, it is important to ensure they are not repeated. This, he says, is accomplished by the educational aspects of the peer review process. He also says peer review uses the standard of the "ideal" world. It is against this standard the review is being conducted. When carrying out peer review, confidentiality is required in order to protect the participants in criticizing both colleagues and themselves in order to ensure, in voicing such criticisms, their statements will not later be used against them. On the question of confidentiality of patient information, Dr. MacLaughlin acknowledged this information belongs to the patient and therefore may be released or revealed only if the patient so directs. The Act The purpose of the Act is defined in s. and includes, in ss.2 (i) and (ii), that public bodies are fully accountable to the public, by giving the public right of access to records and giving individuals right of access to personal information about themselves. Subsection (iii) provides that one of the purposes is to provide limited exceptions to these rights of access. There is, in this case, no dispute that the Regional Hospital is public body, as defined in ss. (J) of the definition section. By s. 4, the Act applies "to all records in custody or under the control of public body...". The exceptions in ss. (2) are not here applicable. The right of access is set out in s. 5(2): "The right of access to record does not extend to information exempted from disclosure pursuant to this Act, but if that information can reasonably be severed from the record an applicant has the right of access to the remainder of the record." Section sets out the procedure to be followed in requesting access to public record. It involves request, in writing, specifying the subject matter of the record so it can be identified and the payment of any fees. Section outlines the duty on the public body upon receipt of request for access: The head of the public body is to make every reasonable effort to assist the applicant and to respond without delay to the applicant openly, accurately and completely. No other form of hearing is apparently envisaged by the provisions or procedures in ss. and 7. The procedure, following determination by the head of public body not to positively respond to request for record, is set out in ss. 32 to 40 and involves an application for review to review officer. Under s. 35 the review officer may try to settle the matter through mediation. Section 37 permits the review officer to decide the procedure on the review, including whether it is to be orally or in writing. Under s. 39, the review officer is to prepare report setting out recommendations and the reasons for the recommendations. By s. 40, the head of the public body, upon receipt of the recommendations, is to decide either to follow the recommendations of the review officer or to make another decision. If the decision is not to follow the recommendation, they are to advise the applicants and any third party of their right of appeal to the Supreme Court. The role of the Supreme Court is set out in s. 42. The Court is to determine if the head of the public body was justified in refusing to disclose or in disclosing the report. By ss. 6, the Court is clearly not to substitute its discretion nor its view on the issue of the request for disclosure of the report. It is simply to determine if the head of the public body was, in the circumstances, entitled to make the decision it did. The Issues Originally there were, in effect, three issues: 1. Does s. 60(2) of the Evidence Act, in the present circumstances, apply to the request for disclosure of the authors' report? 2. Does the content of the report fall within the statutory exemptions found in s. 21(1) of the Act? 3. Is the report protected from production by reason of privilege and does its content fall within the statutory exemption set out in s. 20(1) of the Act? 1. Does s. 60(2) of the Evidence Act, in the present circumstances, apply to the request for disclosure of the authors' report? It no longer appears to be in disputed that s. 60 is not applicable because, in the present circumstances, the request for access and the decision by the Board, do not involve processes within the definition of "legal proceeding" contained in s. 61(a), nor are we involved with "witness" being asked, in the course of legal proceeding, to answer questions or produce documents as provided in ss. (b). In the event there may later be such "legal proceedings" and persons are called as "witnesses" then, pursuant to s. 60(1)(b), it will be for determination at that time whether, and to what extent if any, the privilege in s. 60(2) will be applicable. In this regard, make no finding in respect to the application of s. 60(2) on such legal proceeding and on such an application. 2. Does the content of the report fall within the statutory exemptions found in section 21(1) of the Act? Section 21 is headed "Confidential Information." It requires the satisfaction of three conditions, listed in ss. (a), (b) and (c). In effect, for purpose of this application, the question relates or turns on the interpretation of s. 21 (1) (a), and specifically, whether disclosure to the applicant would reveal information that was trade secret or of scientific, technical nature or involving labour relations of third party". In considering s. 21 and whether it would involve the revealing of trade secrets or of scientific or technical information or labour relations information, note the written submission, on behalf of Mr. Chisholm, to the following effect: "One must look at all of s. 21 in interpreting the intent of the legislators. Section 21 says trade secrets cannot be revealed, or commercial, financial, labour relations, scientific or technical information. Read as whole, the respondent argues s. 21 is designed to protect third parties from being disadvantaged in commercial activity or in negotiations. If the Appellant was engaged in developing some cutting edge psychiatric treatment or technology in partnership with pharmaceutical company, then perhaps s. 21 would have some application here. We submit it does not." Counsel for the families, in acknowledging that the ordinary "commonly understood" definition of "technical information" should apply in interpreting s. 21, says it is not applicable in respect to report reviewing "practices and procedures" in the care and treatment "received by three patient's, that also "contains evaluations with respect to hospital personnel". Counsel suggests any technical information contained in the report is simply "by-product" of the primary thrust of the review, which involves the circumstances surrounding the medical treatment of the three patients that was the triggering factor behind the creation of the report itself. The report was commissioned with the primary focus of finding out what had happened and any technical information is only "by-product" of this primary focus. On the other hand, counsel for the appellants cites the Oxford dictionary defining medicine as, "the science concerned with the cure, alleviation and the prevention of disease, and restoration and preservation of health". As result, in the submission of counsel, the appellants during the interviews with the authors were dealing with scientific or technical information. It is acknowledged that in order to come within s. 21 it is also necessary the information be supplied, implicitly or explicitly, in confidence and also meet one of the various conditions set out in ss. (c). In respect to the present circumstances, the care and treatment of the patients was, as noted by number of the witnesses, confidential to the patients and, by virtue of s. 43 of the Act, to their personal representatives. As such, any scientific or technical information concerning their care and treatment are matters that are not confidential to the third party appellants but rather to the families who now seek the disclosure of these particulars. The information on the care and treatment of these patients necessarily would include matters of scientific or technical nature; however, this would not be supplied to the patient in circumstances of implicit or explicit confidence, in regards to the patient themselves and, therefore this information would not meet the requirements for non-disclosure pursuant to s. 21. In respect to information concerning the policies and practices of the Regional Hospital, this might possibly have qualified under s. 21; however, in view of the hospital's willingness to disclose the full report it is to be assumed the information as to its policies and procedures, as determined by the authors, is not intended to be held in confidence by the Regional Hospital. There is also an additional issue as to whether the Regional Hospital would qualify as third person for purposes of the Act. will deal further with this question when reviewing the applicability of s. 20. However, in this case, and in respect to s. 21, the disclosure of information by the doctors on the hospitals policies and practices, is matter of confidentiality to them and not to the hospital. I'm satisfied therefore, in supplying these comments or evaluations the appellants were communicating this information in the belief it would be held in confidence. It is therefore only in respect to identifying individual persons, as the suppliers of comments on the practices and policies of the hospital, that s. 21(1)(b) is satisfied in the present circumstances. Also, the doctors in supplying evaluation, analysis and criticism of self and other colleagues were doing so in the belief their information was being supplied in confidence and therefore such information would also clearly meet the requirements of ss.(1) (b). The requirement in ss. (c)(ii) that as result of any disclosure it could reasonably be expected similar information will no longer be supplied to the public body depends, in these circumstances, on the decision whether the information in question meets the requirements of s. (1)(a). In our view, if ss. 1(a) has been satisfied, then the other two conditions necessary to come within s. 21, would equally have been satisfied. There is nothing in s. 21 referring to personal or private information. reading of s. 21, as whole, suggests it is intended to protect trade and scientific and commercial secrets or information and does not relate to personal and private information. Absent evidence, of which there is none, that the information here consisted of scientific or technical secrets or labour relations secrets, the scientific, technical or labour relations aspects of the information provided is only, in our view, incidental. The concern, as testified to by Doctor McLaughlin, as well as other of the witnesses, is about the personal expressions of opinion by the doctors relating to their analysis and criticism of the performances of self and colleagues. In this respect it is the "personal" nature of the information that is of concern, not any "scientific, technical or labour relations aspects." am satisfied, having regard to the Act as whole, s. 21 is only designed to protect third parties from being disadvantaged in commercial activity or in labour negotiations. This section is intended to prevent disclosure where it would reasonably be expected to harm significantly the competitive position or interfere significantly with the negotiation position of third party, result in undue financial loss or gain to any person or organization or reveal information supplied to, or the report of an arbitrator, mediator, labour relations officer or other person or body appointed to resolve or inquire into labour-relations dispute. The expressed opinions, by the appellants, in respect to the performances of self and others, as well as the practices and polices of the hospital, undoubtedly relate to matters of "scientific or technical nature". However, the thrust of the concern, is neither the technical nor the scientific nature of the information. It is, on the other hand, the "private" nature of the comments that, on the evidence of the appellants and intervenors, causes them concern. The technical or scientific or even the labour relations aspect of the information is clearly incidental to the personal and private nature of the comments made during the course of the various interviews with the authors. There is no suggestion, in the evidence, that the technical or scientific or labour relations nature of the information will harm the competitive, financial, negotiation position of the third parties or disclose trade secrets. On the other hand, the evidence is that it will disclose the personal views and opinions of the doctors of themselves as well as their colleagues. Despite, therefore, the technical or scientific or even labour relations nature of some, and perhaps most of the information communicated by the appellants, this information is not, in these circumstances, protected from disclosure by s. 21. 3. Is the report protected from production by reason of privilege and does its content fall within the statutory exemption set out in s. 20(1) of the Act? The third issue involves the question of privilege at common law and the application of s. 20 of the Act. The conditions for the existence of privilege, against the disclosure of communications were outlined by Wigmore and adopted by the Supreme Court of Canada in Slavutych v. Baker et al. (1975), 1975 CanLII (SCC), 55 D.L.R.(3d) 224 at page 228. "(1) The communications must originate in confidence that they will not be disclosed. "(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. "(3) The relation must be one which in the opinion of the community ought to be sedulously fostered. "(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation." During the course of argument, it was suggested there is presently no litigation and therefore, condition four would not apply. am satisfied that proper interpretation of the four conditions references, in condition four, not only existing but also potential or future litigation. The absence of any litigation by the families, at present, would not preclude the existence of the privilege. The distinction between the records of hospital disclosing the facts relating to the care, assessment or diagnosis and treatment of patient, as opposed to the examination and evaluation of the facts for the purpose of both education and improvement of care, practice and services in hospital was recognized by the Saskatchewan Court of Appeal in Kerr v. Saskatchewan (Minister of Health), 1994 CanLII 4586 (SK CA), [1994] W.W.R. 153. Sherstobitoff, JA, in delivering the judgment of the Court, at pp. 159, 160 and 161, said: "On the application of the Wigmore rules approved in Slavutych, he determined that the committee documents were not privileged. On this analysis, Finley stood, at most, for the proposition that the records of hospital discipline committee in respect of specific incident were not privileged from production to the person injured in the incident. Communications of the facts of an incident, whether between hospital personnel or involving third parties, do not normally originate in confidence. It cannot conceivably be said it is in the public interest that such facts should be concealed from litigant who alleges that he has been injured as result of that incident. Examination and evaluation of the facts of an incident for the purpose of the education of hospital personnel and the improvement of care, practice and services of hospital is quite different matter. This function includes peer review, criticisms, matters of opinion, and recommendations for changes. Most of these things will originate in the expectation that they will be held in confidence. The confidentiality is necessary to ensure free and frank discussion, expression of opinion and recommendations for changes without the fear that such expression will be used for the benefit of private litigant. No one can gainsay that the objectives are desirable for the community in general and thus can be said to serve the public interest. Certainly, good argument may be made that such communications do meet the Wigmore criteria for privilege." In respect to the communications by the appellants to the authors there is no question that from their perspective they originated in confidence they would not be disclosed. This condition of confidentiality was, and is, viewed as essential to the full and satisfactory maintenance of the relationship between the appellants and the Regional Hospital. This relationship is also one which ought to be sedulously fostered and on the evidence, injury will inure to this relationship by the disclosure of these communications in these circumstances, and although the disclosure of personal comments and evaluations may be of assistance to the family in respect to any future litigation, it is not necessarily information that is required for this purpose. Although the circumstances surrounding the communication of both the patient and other information provided to the authors by the appellants may have satisfied the "Wigmore" conditions for "confidentiality" and, therefore, justify nondisclosure, regard must also be had to any relevant statutory provisions that may limit, extend, modify or wipe out this common law privilege. In this respect, s. 20 of the Act is relevant. Section 20 is headed "Personal information" and begins by requiring the head of public body to refuse disclosure of personal information if the disclosure would be an "unreasonable invasion of third party's personal privacy". Section 3(i) defines "personal information" as: "recorded information about an identifiable individual, including ... (vi) information about the individual's health-care history, including physical or mental disability, ... (viii) anyone else's opinions about the individual, and (ix) the individual's personal views or opinions, except if they are about someone else." In determining whether it is an "unreasonable invasion of third party's personal privacy", the head of public body shall consider: Subsection 2: "all the relevant circumstances, including whether ... (c) the personal information is relevant to fair determination of the applicant's rights; ... (f) the personal information has been supplied in confidence; ... (h) the disclosure may unfairly damage the reputation of any person referred to in the record requested by the applicant." Subsection presumes certain information to constitute an "unreasonable invasion of third party's personal privacy" if: "(a) the personal information relates to medical, dental, psychiatric, psychological or other health-care history, diagnosis, condition, treatment or evaluation; ... (g) the personal information consists of personal recommendations or evaluations, character references or personnel evaluations;" On the other hand, ss. (4) presumes disclosure of personal information of certain types as not being an "unreasonable invasion of third party's personal privacy" if: "(a) the third party has, in writing, consented to or requested the disclosure." Subsection provides that where there is refusal: ". to disclose personal information supplied in confidence about an applicant, the head of the public body shall give the applicant summary of the information unless the summary cannot be prepared without disclosing the identity of third party who supplied the personal information." Relevant also, in the circumstances of this case, are ss. 27 and 43. Section 27: "A public body may disclose personal information only ... (b) if the individual the information is about has identified the information and consented in writing to its disclosure." Section 43: "Any right or power conferred on an individual by this Act may be exercised a) where the individual is deceased, by the individual's personal representative if the exercise of the right or power relates to the administration of the individual's estate." On the question of confidentiality, as reviewed earlier, Doctor Foley said there were three types of information communicated to the authors: patient information; personal information; professional information and opinion. Doctor Sharma, in respect to patient information, testified the confidentiality in respect to patient information is designed to protect the client, and, is therefore the patient's confidentiality. Also, Doctor McLaughlin agreed patient information is confidential "to the patient". The first question, on this issue is whether, under s. 43, personal representatives of each of the deceased are entitled to seek or to waive the confidentiality of the patient information, and whether the seeking of this information, by the personal representative, relates to the administration of the individual's estate. In the present circumstances, where the individuals are deceased and where the information sought relates to the circumstances of their care and treatment proceeding their death, it is clear the request would fall within s. 43(a). It is mistake to attempt to label the report of the authors as simply or solely "peer review." Its origins were the suicides of three persons who, prior to their deaths, had contact in one form or another with the Regional Hospital and some of its staff. As stated by Ms. MacIsaac an impetus for the review was the concerns by the families, and initially the "Cormier family", and their dissatisfaction with the answers they were receiving from the hospital staff. Clearly, to the families, the report was seen as fact finding investigation to determine what happened. Ms. Cormier testified she requested the independent review during her meeting with Doctors Jackson and Sharma and Ms. Richards on November 23rd, 1995, when she was told by Doctor Sharma that her next step, if she was not satisfied, was to request an "independent review of her son's medical file". In response to counsel, she said she expected someone to actually tell her what had happened to her son. She wanted the file looked at and to be told if he had received adequate treatment. Although some of this information may be available, as testified to by Doctor Forbes and suggested by Doctor McLaughlin, by other legal process this is no basis to preclude the persons entitled to the privilege or privacy from receiving the information or to waiving the privacy even where the information is gathered or obtained under process that also contains elements of confidentiality to others. None of the witnesses testified that the course of any treatment or any diagnosis by medical staff at the hospital, in respect to each of the deceased, involved peer review. In fact, such does not meet the criteria suggested by any of the definitions of peer review given by the various physicians and other persons who testified during the course of this hearing. This information is confidential to the patient, and in view of s. 43(a) the individual personal representative of each of the deceased are entitled to seek the information and to waive its confidentiality, if they so decide. In this respect, refer to the decision of the Supreme Court of Canada in McInerney v. MacDonald (1992), 1992 CanLII 57 (SCC), 137 N.R. 35 where the circumstances are summarized in the headnote: "A patient requested her doctor to provide copies of all documents in her medical file, including documents received from five other physicians who previously treated the patient and written opinions as to her health prepared by consultants." The Supreme Court, as further noted in the headnote, agreed: ". all documents were to be disclosed to the patient. ... The fiduciary duty to provide access to medical records was grounded in the nature of the patient's interest in his or her records. ... The patient has prima facie right to access in equity, there was no evidence that access would be harmful to the patient or third party and the doctor offered no other compelling reason to justify nondisclosure ... patient was entitled to inspect and copy all information in the patient's medical file which the doctor considered in administering advice or treatment." The only qualifications to disclosure, were noted by LaForest, J., at p. 59, and related to the presence of regulatory legislation or where there was evidence that "access to the records would cause harm to the patient or third party," or the existence of "other compelling reason for nondisclosure." Although little, by way of specific assurances were ever made to the families, in terms of their receiving the report, it is clear, in the circumstances, they had every reason to believe that as result of the review they would be provided with whatever answers were learned. Ms. Cormier was offered the opportunity to have her son's medical file reviewed by an independent psychiatrist. Clearly it would be reasonable for her to expect she would be provided with the results of such an independent study. Ms. MacIsaac testified one of the impetus for the review were the concerns and questions of the families. She also testified that although she never intended to give the families the report, she planned to meet with them, after receipt of the report, and give them further answers. As she said, "hopefully she would be able to get answers to these families". Issues of peer review involving as they do self and colleague analysis and criticism in respect to performance, do not appear to be the focus of the families expectations, nor, on the evidence, were they promised this information. It is, in our view, far too easy to simply attach labels to inquiries or reviews and thereby seek to have them cloaked by some legal security or privilege blanket. This report contains elements of what has been identified, and accept, as peer review, but to larger extent, focuses on findings as to the assessment or diagnosis, care and treatment of the three deceased. The families, in my view, expected report detailing what had happened. Nothing was said or done to suggest they wouldn't receive this and, in fact, they were, if anything, encouraged in the belief this would be forthcoming. am here satisfied that the personal representatives of each of the three deceased, are, pursuant to s. 43(a) entitled to the information concerning the care, treatment, diagnosis and or assessment by the hospital staff of each of the deceased. The second question, on this issue, relates to the information communicated by the appellants to the authors in reference to the practices and policies of the Regional Hospital. Section 20 of the Act only mandates that the head of public body shall refuse to disclose personal information where the disclosure would be "an unreasonable invasion of third party's personal privacy". The personal privacy of the public body does not appear to be basis for the refusal to release such information. In any event, the Board of the Regional Hospital has agreed to the release of the report and, thereby, the release of any comments by the authors concerning any practices, policies and procedures at the Regional Hospital. The third type of information, supplied to the authors, involved performance criticisms by the appellants of themselves and others and, as well, identification by them of individual concerns or comments on the policies and practices of the Regional Hospital. The report, as commissioned, went beyond detailing the care, diagnosis or assessment and treatment of these three deceased, and, as outlined by Doctor Kutcher in his letter of December 4th, 1995, went on to consider the actions, roles and responsibilities of the patients, the hospital staff, physicians and families of the deceased and asked the reviewers to review and access the nature and adequacy of patient records and hospital policies and practices as they related to the three cases. It is, in our view, on all the definitions of peer review advanced by the various witnesses only in respect to information detailing staff analysis and criticisms of the performances by other staff, and themselves, together with individually identified comments or concerns on hospital policies and procedures that the question of "peer review" arises in the present case. In Doyle v. Green, [1996] N.B.J. No. 122, Turnbull J., of the New Brunswick Court of Queen's Bench, was concerned with the validity of claim of privilege to number of documents in hospital, following surgery on the plaintiff. Objection to production was made on number of grounds, including the general ground of physician/patient privilege, s. 43 of the Evidence Act of the Province of New Brunswick, which is similar, but not the same, as s. 60 in the Nova Scotia Evidence Act, and on the common law principles accepted in Slavutych v. Baker, supra. One of the medical affidavits filed, and considered, by Turnbull J. contained the following: "(26) It is in the public interest that there be frank disclosure between health care professionals in order to maintain high quality health-care delivery programs. (27) In order for the Region Hospital Corporation to carry out its mandate to monitor, maintain and improve medical care, the individuals providing information and co-operation and participating in this committee work must be satisfied that any communication which originates is on confidential basis that may not be otherwise disclosed. This element of confidentiality is essential to obtaining the co-operation and maintaining the relationship between the various Committee members, various physicians as well as other hospital staff involved." After reviewing Wigmore's four conditions for establishing privilege against disclosure of communications, as adopted by Spence, J., in Slavutych v. Baker, supra, Justice Turnbull, at paragraph 20, said: "In Regional Hospital Corporations's case doctors' privileges are reviewed annually. Other doctors' opinions are periodically sought on individual performance. The Slavutych case itself is authority to the effect that these communications should remain confidential through privilege. There is tremendous benefit to society generally in having doctors evaluate each other, perhaps leading to upgrading, or otherwise ensure that hospital privileges are extended only to competent doctors as assessed with input from his or her own peers. Any reservations expressed are solely opinions and indeed may be based on groundless reasoning. To reveal this type of information would obviously lead to discord in the hospital staff itself and expect it would be an exceptional case where such communications would be of more benefit to the correct disposal of litigation than the injury that would be caused by disclosure. It was this type of communication that was involved in Slavutych." In dealing with statutory provision similar to s. 60 of the Nova Scotia Evidence Act, Justice Turnbull then went on to hold that reports, prepared by the hospital or the appropriate committee, are privileged if the dominant purpose is educational or to improve hospital care. He then, at paragraphs 29 and 30, continues: ". do not believe there is any prohibition in this legislation that prohibits production of facts uncovered in the in-house investigation. There is no educational or hospital care benefit to the raw data. The dominant purpose at this stage is to find out what happened. The educational aspect comes from the opinions of doctors sitting in formal committees expressing opinions and listening to the opinions of his or her peers and in examining those facts and writing reports based on their collective wisdom, experience and learning. believe the amendments make these changes to the common law as compromise of interests." In our view, in s. 20 there is similarly compromise or balancing in seeking to weigh the information of public body that should be disclosed and information, if disclosed, that would amount to an unreasonable invasion of third party's personal privacy. Section 20 (3) (a) presumes the personal information relating to the medical, dental, psychiatric, psychological or other health-care history, diagnosis, condition, treatment or evaluation, of an individual to be "an unreasonable invasion of third party's personal privacy". similar presumption, under s. 20 (3)(g) arises in respect to personal information that consists of personal recommendations or evaluations, character references or personal evaluations. In the context of this application, and apart from identification of the source of any concerns or comments about hospital policies and practices, the only areas involving peer review would be references to information obtained from the participants involving self or colleague performance analysis and criticism and any recommendations made by the authors, or conclusions drawn by the authors, from this information. At most, this would appear to involve little of the 29 pages comprised in the report. The discloseable portions of the report are more than "disconnected snippets of releasable information taken from otherwise exempt passages" referred to by Justice MacKay in SNC Lavalin Inc. v. Canada (Minister of Public Works) (1994), 79 F.T.R. 113. Clearly, on reading the report, the portions involving "peer review", are reasonably severable from the remainder of the report. They are, pursuant to s. 20, "presumed to be an unreasonable invasiton of third party's personal privacy" and therefore not to be disclosed. There need not, however, be the distorted picture referred to by Edwards J. in the Donham v. Nova Scotia (Attorney General) et al (1993), 123 N.S.R. (2d) 320, by the removal from the report of the passages detailing these personal evaluations and the resulting conclusions of the authors. Conclusion Pursuant to s. 20(3)(g), the disclosure of personal information consisting of personal recommendations or evaluations, character references or personal evaluations by the appellants and other Regional Hospital staff are "presumed to be an unreasonable invasion of a third party\'s personal privacy" and by s. 20(1), the hospital is required to refuse to disclose this information. It necessarily follows that recommendations by the authors founded or based on such information is also presumed to be an unreasonable invasion of privacy and likewise not to be disclosed. As such the information referred to above is to be edited out of the report as well as any recommendations based on such personal information. Pursuant to ss. 20 (3)(a), 20 (4)(a), 27 and 43 the remainder of the report is discloseable to the personal representatives of the three deceased. Each of the personal representatives is entitled to receive an "edited" copy of the report, from which has been deleted any information relating to the other individuals who have suicided and the personal information herein found to constitute an "unreasonable invasion of the privacy" of the appellants and other hospital staff who provided information to the authors. The Regional Hospital, on the representations made to this Court, has consented to the release of the report. As such, it clearly has consented to release of any comments and recommendations relating to the hospital's policies and procedures. Excluding any passages identifying any of the appellants or other participants as communicating comments relating to the hospital's polices and practices, being concern expressed by one of the doctors, there is no basis to withhold these sections of the report from disclosure, at least, to the families. The report also deals with Identification and Terms of Reference, Process and Documents reviewed, and Background Issues Regarding Suicide and, like the findings as to the treatment, diagnosis or assessment and care of the three deceased, these are not matters of peer review. Once informed of the factual findings, by the authors, as to care, assessment or diagnosis and the treatment received, and the comments and recommendations on the policies and practices of the hospital, it will then be for the families to review this information with such persons in whom they have confidence. If this information is less than what they believe they are entitled to receive, they will no doubt wish to review this circumstance with persons and advisers of their own choosing. Similarly, to the extent, if any, participants in the review process believe they were assured of confidentiality, beyond that afforded by the form of the report here ordered to be disclosed, it will be for them, if they wish, to review their circumstance with persons and advisers of their choosing. J. Sydney, Nova Scotia

Following three patient suicides at the Cape Breton Regional Hospital, the hospital, in response to concerns and questions from family members, retained two psychiatrists to review the cases, the roles and responsibilities of individuals involved in the cases, patient records and hospital policies and practices. At the end of the review they were to provide a written report to the hospital's Chief Executive Officer. The hospital staff participating in the investigation and review were advised that their information would be treated as part of a 'peer review' and therefore confidential. Upon receipt of the report the hospital, as a result, refused to disclose the report to the families. An application pursuant to the Freedom of Information and Protection of Privacy Act was made by an M.L.A., who sought for the disclosure of the report and for a review of the hospital's decision to not release the report. The hospital decided to release the full report. The appellant employees appealed the decision of the hospital, claiming that they had been assured confidentiality. Allowing the appeal, that the disclosure of personal information consisting of personal recommendations or evaluations, character references, or personal evaluations by the appellants and other hospital staff are presumed under s. 20(3)(g) of the Act to be an unreasonable invasion of a third party's personal privacy. Under s. 20(1) the hospital is required to refuse to disclose this information. It necessarily follows that recommendations in the report founded upon such information is also presumed to be an unreasonable invasion of privacy and is likewise not to be disclosed. The remainder of the report is disclose able.

4_1996canlii5334.txt

70128 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: KAREN L. TURNER‑LIENAUX and THE ATTORNEY GENERAL OF NOVA SCOTIA, representing THE CIVIL SERVICE COMMISSION and THE VICTORIA GENERAL HOSPITAL, being agents of Her Majesty The Queen in the right of the Province of Nova Scotia and PATRICIA GUILE INTERVENOR HEARD: at Halifax, Nova Scotia, before the Honourable Mr. Justice Walter R. E. Goodfellow, Trial Division, on the 16th day of January, 1992 (in Chambers) DECISION: January 16th, 1992 (orally, at conclusion of hearing) COUNSEL: Charles D. Lienaux and Michael I. King, for the Plaintiff E. J. Flinn, Q. C., for the Defendant Dawna Jean Ring, for the Intervenor 70128 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: KAREN L. TURNER‑LIENAUX and THE ATTORNEY GENERAL OF NOVA SCOTIA, representing THE CIVIL SERVICE COMMISSION and THE VICTORIA GENERAL HOSPITAL, being agents of Her Majesty The Queen in the right of the Province of Nova Scotia and PATRICIA GUILE INTERVENOR GOODFELLOW, J.: (Orally) This is the matter of Karen L. Turner‑Lienaux, the Attorney General of Nova Scotia and Patricia Guile. pre‑hearing conference in this matter was held Tuesday, the 14th of January, 1992, where agreement was reached that today the court would address the following: 1. the defence application to remove Charles D. Lienaux as solicitor in the plaintiff's application filed December 2nd, 1991; 2. If Charles D. Lienaux were removed, should he be permitted to address the defendant's further application to strike the original application, which consists of the originating notice interlocutory (inter partes) and Charles D. Lienaux's affidavit in support of the plaintiff's original application, sworn the 27th day of November, 1991, and filed the 2nd of December, 1991? Prior to the hearing, Mr. Lienaux indicated willingness to withdraw as solicitor for the plaintiff's application of December 2nd, 1991, but continue on the defence application to strike. The defence application strike is to be heard January 22nd, 1992, at 11:00 a.m. This causes me to review Mr. Lienaux's position. The application by the defendant for the court to order Charles Lienaux to remove himself as solicitor for the plaintiff in his application filed December 2nd, 1991, is supported by the intervenor. This application in itself seeks declarations and relief against the defendant and the solicitor in the employ of the defendant, the Attorney General of Nova Scotia. The defence takes the position that the application is supported by the 17 page, 123 paragraph affidavit of Charles D. Lienaux, and that he has placed himself in the position of a witness who may be cross‑examined. Mr. Lienaux, in one of his extensive briefs, took the position that the defendant's motion was entirely misconceived and has no merit; however, he goes on to state at p. of his brief: "The Defendants have submitted authority to your Lordship which holds that solicitor may not be advocate and witness in the same proceeding where the solicitor seeks to speak directly to matters in issue in the proceeding. The Plaintiff finds no fault with that proposition or with any of the authorities cited by the Defendants in support of that proposition." Mr. Lienaux maintains that the summary application before the court is not proceeding wherein the parties are opposed in an adversarial position. He takes the view that this is matter of the court supervising one of its officers. He says further that the court may hear any evidence which it may determine is relevant to the rendering of properly considered determination of the propriety of the impugned solicitor's conduct. Undoubtedly the court will, when the original application on its merits is heard, hear any evidence which it determines to be relevant, but I fail to see how that determination permits the plaintiff's solicitor to escape the ethical duty not to give evidence in a matter in which the lawyer is involved as counsel except in merely formal or uncontroverted matters. Mr. Lienaux states at p. of his brief: "The Court's jurisdiction to award compensation to party for solicitor client costs incurred improperly as result of solicitor's dereliction of duties owed relative to the conduct of litigation in Nova Scotia is encoded in our Rules at Rule 63.15 as follows..." "Costs arising from misconduct or neglect 63.15.(1) Where any thing is done or an omission is made, improperly or unnecessarily, by or on behalf of party, the court may order, (a) any costs arising from the act or omisison not be allowed to the party; (b) the party to pay the costs of any other party occasioned by the act or omission; (c) taxing officer to inquire into the act or omission, with power to order or disallow any costs as provided in clauses (a) and (b). (2) Where in proceeding, costs are incurred improperly, or without reasonable cause, or arise because of undue delay, neglect or other default, the court may, when the solicitor whom it considers to be responsible, whether personally or through servant or agent, is before the court or has notice, make an order, (a) disallowing the costs as between the solicitor and his client; (b) directing the solicitor to repay to his client costs which the client has been ordered to pay to any other party; (c) directing the solicitor personally to indemnify any other party against costs payable by the party; [E.62/29] (d) directing taxing officer to inquire into the act or omission, with power to order or disallow any costs as provided in clauses (a) to (c)." have no quarrel with this statement, but how does it advance Mr. Lienaux's position that he should be allowed to continue, even though he is witness and probably subject to cross‑examination? do not accept the proposition advanced by Mr. Lienaux that, because he seeks determination of the allegations of misconduct of another solicitor, he is permitted to be both witness and counsel. In addition, this application is made by the plaintiff seeking number of remedies, including compensation for the plaintiff and fees, etc. and is much broader, in my view, than Mr. Lienaux's brief contends. Mr. Lienaux says at p. of his brief: It is the Plaintiff's respectful submission that the Notice and Affidavit filed in the present Application do nothing more than document to the Court the matters complained of by the Plaintiff..." cannot follow how this mysteriously takes the contents of the affidavit out of its character of evidence. Finally, Mr. Lienaux says to allow the defendant's motion would bring the administration of justice into disrepute. find quite the opposite, that should fail to grant the defendant's motion, it is more likely to bring the administration of justice into disrepute. The defence's initial request for cross‑examination of Mr. Lienaux is understandable. Although there is no absolute entitlement to cross‑examination, it is almost always the case that it is appropriate and it certainly would be appropriate in this instance. The affidavit filed by Mr. Lienaux is extensive 17 pages, 123 paragraphs and it is the foundation for the plaintiff's several claims for relief as set out on the application of the plaintiff dated the 2nd of December, 1991. In Oakfield Builders v. LeBlanc (1977), 25 N.S.R. (2d) 556, (S.C.T.D.) Chief Justice Cowan allowed the conduct of the trial to continue by associates the two solicitors of record, both of whom were witnesses. in the trial. After setting out how and why this situation arose, Chief Justice Cowan stated at p. 571: "I comment on this, only to note that the practice followed in this case is not the usual practice, and it should not be taken as precedent to be followed, except in very exceptional cases, of which this seemed to be one." In Baydon Corp. Ltd. v. DuPont Glore Forman Canada Ltd. (1974), 1974 CanLII 593 (ON SC), O.R. (2d) 290, (Ont. H.C.J.) the court, during the course of the argument, raised the question whether counsel in fact intended to rely on his own affidavit. Counsel for the opposing party did not object to the affidavit, nor did they wish to cross‑examine on it. Yet Henry, J. at p. 298 said: ".. It is clear rule of practice before our Courts that professional counsel cannot at the same time as he is presenting his client's case as an officer of the Court, be witness in the proceedings. He must, if faced with the dilemma, make choice he may be either witness or counsel; he cannot be both. This practice has been the subject of judicial comment. In Ryan et al. v. Dubois et al., 1950 CanLII 314 (ON SC), [1950] O.W.N. 818, ... McRuer, C.J.H.C., said at p. 820: In both applications the only affidavit in support of each motion was an affidavit of Mr. Hess, who appeared as counsel before me. It has been repeatedly stressed that solicitors who make affidavits ought not to appear before the Court to argue the case on the basis of their own affidavits. permitted Mr. Hess to continue with his argument on account of some exceptional circumstances, but it cannot be too firmly impressed on the members of the legal procession that this practice must be not only discouraged but discontinued. It has been the subject of repeated judicial comment and while there may be exceptional cases there seems no good reason why the practice should not now become the subject of judicial restraint." There is no absolute prohibition that solicitor cannot file an affidavit, but it is limited. In the case of New Brunswick Milk Dealers Association v. New Brunswick Milk Marketing Board (1984), 56 N.B.R. (2d) 413, Stevenson, J. said at the bottom of p. 414 and the top of p. 415, beginning at para. 7: "It is bad practice for the solicitor for party to make such an affidavit. We have been lax in this court in permitting solicitors who make affidavits not confined to procedural matters to argue cases on the basis of their own affidavits. The practice should be discouraged. solicitor who makes an affidavit swearing to facts going to the merits of case or of motion is in the same position as solicitor who finds himself on the witness stand he should not be heard as both witness and counsel..." Finally, in Re Bazant (1984), 1984 CanLII 2659 (SK CA), 33 Sask. R. 1, the Saskatchewan Court of Appeal queried the propriety of counsel because he was partner or associate of barrister who had given evidence that had been challenged and who had been witness in prior proceeding. Counsel in that case reflected on the court's comments and then acknowledged that he should not continue as counsel in such circumstances. I've been referred to Rule 10.11 of the Nova Scotia Barristers' Society Handbook and Code of Ethics. What is the position of that Handbook? It is as stated in the section entitled "Interpretation"" This Handbook contains the rules for ethical and professional conduct deemed appropriate for lawyers in Nova Scotia...." The Handbook has been approved by the bar council. Chapter 10 of the Handbook deals with the lawyers as advocate, and para. 10.11 is headed "Constraints on lawyers giving evidence by affidavit". "10.11 The lawyer has duty to respect and comply with the rules of court for affidavits and not to give evidence, in matter in which the lawyer is involved as counsel, by affidavit except only as to merely formal or uncontroverted matters." The Handbook is, as stated.; an outline of the standards of professional conduct adopted by the Nova Scotia Barristers' Society, and it is accorded recognition as very learned and helpful treatise on the law governing barristers. The Handbook is not, and is not meant to be, exhaustive of the duties and responsibilities of barrister. Mr. Justice Sopinka, of the Supreme Court of Canada, commented on the position of the Canadian Bar Association Code of Professional Conduct of 1974, in Martin v. Gray (1990), 1990 CanLII 32 (SCC), 121 N.R. (S.C.C.) at p. 11, [18] code of professional conduct is designed to serve as guide to lawyers and typically it is enforced in disciplinary proceedings. See, for example, Law Society of Manitoba v. Giesbrecht (1983), 1983 CanLII 2810 (MB CA), 24 Man.R. (2d) 228 (C.A.). The courts, which have inherent jurisdiction to remove from the record solicitors who have conflict of interest, are not bound to apply code of ethics. Their jurisdiction stems from the fact that lawyers are officers of the court and their conduct in legal proceedings which may affect the administration of justice is subject to this supervisory jurisdiction. Nonetheless, an expression of professional standard in code of ethics relating to matter before the court should be considered an important statement of public policy. The statement in Chapter should therefore be accepted as the expression by the profession in Canada that it wishes to impose very high standard on lawyer who finds himself or herself in position where confidential information may be used against former client. The statement reflects the principle that has been accepted by the profession that even an appearance of impropriety should be avoided." felt it necessary to deal extensively with the first issue of Mr. Lienaux's removal, in spite of his willingness to withdraw for the December 2, 1991, application, because of its effect on the argument that removal should be for the entire application and applications directly flowing from it or in opposition to it. have struggled to see if there is any basis upon which Mr. Lienaux could make the argument and remain on record for the purpose of the defence's application to strike, and can find no basis for such limited participation. The boundaries of Civil Procedure Rule 14.25 are quite broad, and I am satisfied that with his removal from the original application, it would not be proper for him to continue on an application directly related or arising from it. It will be impossible to avoid comment on his affidavit, his evidence. These applications are so closely related that it seems to me that it is improper to act in one, that it's improper to act as counsel in the other. The matter of Mr. Lienaux's amendment has been granted so that he is entitled to amend the plaintiff's originating notice of December 2nd, 1990, to allege negligence. In granting that motion it will be up to Mr. Flinn and Ms. Ring to advise the court whether or not they are still able to proceed with the application to strike, scheduled for Wednesday, the 22nd of January at 11:00 a.m., and until so advised that application will stand. On the matter of costs, it seems to me that this matter ought to have been finessed and not dealt with before court. Certainly substantial amount of time and effort has been put in by both the defendant and the intervenor. award costs to the defendant in the amount of $650.00 and costs to the intervenor as requested of $150.00, both costs will be paid forthwith. J. Halifax, Nova Scotia January 16, 1992 1989 S. H. No. 70128 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION BETWEEN: KAREN L. TURNER‑LIENAUX and THE ATTORNEY GENERAL OF NOVA SCOTIA, representing THE CIVIL SERVICE COMMISSION and THE VICTORIA GENERAL HOSPITAL', being agents of Her Majesty the Queen in the right of the Province of Nova Scotia and PATRICIA GUILE

The plaintiffs original application was supported by her solicitor's affidavit. The Defence wanted the solicitor removed. The solicitor agreed to withdraw from the original application but wanted to appear on the Defence's interlocutory application to strike. Ordering the solicitor not to continue in the original or any related applications, that a lawyer has a duty not to give evidence in a matter in which he or she is involved as counsel except in merely formal or uncontroverted matters. Here the applications were so closely related that where it was improper to act in one, it was improper to act in the other.

b_1992canlii4669.txt

SCHERMAN REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 308 Date: 2017 10 12 Docket: FSM of 2015 Judicial Centre: Estevan IN THE MATTER OF HEARING UNDER THE CHILD AND FAMILY SERVICES ACT, SS 1989-90, C-7.2 AND IN THE MATTER OF C.T., BORN …, 2015 Appearing: Jeremy Ellergodt for the Minister Khurshed Chowdury for the respondent-father, A.T. A.R. self-represented respondent-mother JUDGMENT ELSON J. October 12, 2017 INTRODUCTION [1] This case pertains to one child, C.T. [C.T.], born January 7, 2015. At the time of the hearing in this matter, C.T. was slightly more than two years of age. C.T.’s mother is A.R. [A.R.]. His father is A.T. Since his birth, C.T. has lived with A.R.’s parents at their home in Estevan. A.R.’s parents, Mr. R. [Mr. R.] and Ms. R. [Ms. R.] have now been designated as persons of sufficient interest regarding C.T., pursuant to s. 23(1)(a) of The Child and Family Services Act, SS 1989-90, C-7.2 [CFSA]. In this proceeding, the Minister of Social Services [Ministry] seeks an order, pursuant to s. 37(1)(b) of the CFSA, that C.T. be committed to the care of A.R.’s parents for an indefinite period of time. [2] should also note that, when the Ministry first brought this application, A.R. and A.T. were represented by the same legal counsel. After the pre-trial conference, differences arose between the parents and it became necessary that they each have separate counsel. A.R. was represented by counsel from Legal Aid Saskatchewan while A.T. was represented by court appointed counsel. few days before trial, counsel for A.R. sought leave to withdraw on grounds unrelated to the client’s eligibility for legal aid services. Recognizing that A.R.’s communication with counsel was privileged, the court did not inquire further into the reasons for counsel’s request. granted counsel leave to withdraw following which denied A.R.’s request for an adjournment of the trial. As this application was filed in late 2015, was of the view that further delay was not in C.T.’s best interests. Accordingly, directed that the trial should proceed as scheduled. [3] should further note that, at the date and time the trial was scheduled to commence, A.R. was not in attendance at court. During brief adjournment, A.R. was contacted by telephone at her parents’ home at which time she advised that she would not attend the trial. Upon receiving this advice, directed the trial to proceed. That said, should further note that A.R. eventually changed her mind and attended the trial part way through. Although she did not cross-examine any witnesses, she asked to take the stand and give evidence. granted her request and the court received her testimony. She remained unrepresented throughout the trial. [4] The evidence in this case was presented through the testimony of six witnesses: the two child protection workers assigned to C.T.’s case, both of A.R.’s parents, and both of C.T.’s parents. The court also received affidavit evidence, admitted by consent, related to criminal record information. [5] will begin my discussion of the evidence with background review of C.T.’s parents. A.R. was about one month shy of her 32nd birthday at the time of trial. She was born and raised in Estevan, the oldest of three children. The court did not receive any additional evidence related to her level of education or occupational experience. That said, A.R. testified that she relocated to Regina in September 2016, and was residing there at the time of trial. She was employed part-time at retail store in Regina. [6] A.R. admits to an addiction to crack cocaine. Although she did not say how long she has suffered with her addiction, Mr. R. testified that A.R.’s problems developed when she was approximately 25 years old. [7] A.T. was 33 years of age at the time of trial. He was raised in Vancouver, British Columbia and relocated to Estevan in 2012. He has some training in heavy machinery and equipment. That said, his work in Estevan has primarily been devoted to oil rig operations. With the downturn in the price of oil in the last several years, A.T.’s employment history has become somewhat sporadic. At the time of trial, he had relatively consistent part-time employment, earning approximately $5,000.00 per month. [8] A.T. also admits to substance issues. Although he has used cocaine in the past, A.T. candidly admits that his bigger problem is alcohol use. This admission is confirmed by his criminal record which includes more than one drinking and driving offence. [9] The court heard that A.R. and A.T. began their relationship in 2012 or 2013. By the end of 2013, they were living together. The evidence, including the testimony of A.R.’s parents, discloses that the relationship was somewhat tumultuous, marked by considerable conflict and substance abuse. By the time C.T. was born, the couple had stopped living together. Although there appears to have been some effort to get back together in 2015, it is agreed that by the end of that year, the relationship was completely over. Both A.T. and A.R. testified that there is no prospect of reconciliation. [10] The Ministry’s involvement in this family began in September of 2013, more than year before C.T. was born. At that time, the Ministry’s focus was on C.T.’s older brother. N.T. was born to A.R. and A.T. on September 6, 2013. Shortly after N.T. was born, members of the parents’ community advised Ministry staff of child protection concerns related to the parents’ alleged use of illicit drugs and the possible impact this might have on the child’s safety. The Ministry assigned child protection worker, Jolene Millions, to the case. [11] Ms. Millions initiated discussions with A.R. and A.T. These discussions quickly led to the parents and the Ministry entering into Parental Services Agreement, pursuant to s. 14 of the CFSA. Under the terms of the agreement, A.R. and A.T. agreed: 1) to complete an addictions assessment; 2) to complete random drug screens; 3) to remain clean and sober; and 4) to cooperate with the Ministry in its interactions. In turn, as the family’s caseworker, Ms. Millions would check with the family through home visits and phone calls and would also check with addictions personnel to ensure appropriate follow-through. The identified concerns for the agreement were drug use and new baby in the home. In this respect, there was an admission that A.R. had used crack cocaine during her pregnancy. [12] Sadly, tragedy intervened before the Parental Services Agreement could be fully completed. On February 4, 2014, N.T. died. The evidence at trial revealed that N.T. had suffocated when he and his father fell asleep together on the living room couch. [13] Following N.T.’s death, the Ministry had no further contact with the family until late 2014 when it again heard from members of the parents’ community. Specifically, the Ministry learned that A.R. was pregnant again and that there were renewed concerns about drug use during her pregnancy. After receiving the necessary approval from her supervisors, Ms. Millions contacted A.R. directly. [14] Although the court did not receive detailed description of the Ministry’s interaction with the parents at this time, there is no dispute that A.R. agreed to be admitted to the Calder Centre, well-known inpatient detoxification and rehabilitation facility in Saskatoon. The report from the Calder Centre, admitted by consent, revealed that A.R. was admitted on December 9, 2014 and discharged 20 days later, on December 29, 2014. The report also disclosed that A.R. made significant progress in her treatment goals during her admission, which was originally expected to last 30 days. It was cut short so that she could deliver C.T. on January 7, 2015. [15] Immediately after C.T. was born, the Ministry entered into residential services agreements with both parents, pursuant to s. of the CFSA. Because A.R. and A.T. were no longer living together, and because of the specific care arrangement for C.T., each parent entered into separate agreements. The agreement with A.R. stipulated that C.T. would live with her only at her parents’ home. A.T.’s agreement permitted him visits with C.T. at Mr. and Ms. R.’s home. [16] At the same time as the parents entered into their respective s. agreements, they also agreed to separate agreement under s. 14 of the CFSA. This agreement specifically identified the drug use concerns as well as certain mental health concerns related to A.R. The agreement included requirements that A.R. and A.T. would: 1) provide random drug screens to the Ministry; and 2) connect with addictions counselling and mental health counselling. The agreement also stipulated that A.T. would attend detoxification and treatment. In turn, the Ministry, through Ms. Millions, agreed to schedule the drug screens, take steps to ensure that C.T. was safe and follow up with the family for scheduling visits. [17] For time, the s. arrangement appeared to be functioning relatively well. It began to unravel, however, in early February 2015, culminating in the agreement’s termination on March 2, 2015. [18] The first sign of problems in the agreement arose in early February. On February 6, 2015, Ms. Millions met with the family, including Mr. and Ms. R. The meeting did not go well. Aside from not interacting with C.T. in any way, A.R. became extremely volatile and argumentative. The court heard that, in language laden with obscenities, A.R. directed her anger at both Ms. Millions and her parents. [19] Although there was hope that the February incident was an aberration, it turned out not to be so. Ms. Millions testified that, during the month of February, A.R. would often call her and express the same kind of vitriol shown at the family meeting. A.R. also refused to cooperate appropriately with the family support worker that had been set up for her. [20] Things came to head sometime around March 1, 2015. According to Mr. R., A.R. had been increasingly disruptive in the home and refused to cooperate with the family support workers assigned to assist her with C.T. According to the undisputed testimony of Mr. R., A.R. had become so disruptive that her father was compelled to call the police and have her removed from the home. Shortly after this incident, on March 2, 2015, A.R. sent an email message to Ms. Millions advising that she was withdrawing from the s. agreement and wanted C.T. removed from her parents’ care. It was at this point that the Ministry terminated the s. agreement and formally apprehended C.T., who remained in his grandparents’ care. [21] digress from the narrative, at this point, simply to note that A.R. made certain allegations of abuse against her parents, which allegations formed the basis of her request to have C.T. removed from their care. Ms. Millions testified that the allegations were investigated and found to be unjustified. Ms. Millions went on to say that the Ministry had no concerns, of any kind, with the care provided by Mr. and Ms. R. [22] Following the apprehension, protection hearing was held before this Court, resulting in an order, dated April 10, 2015. Under the terms of the order, C.T. was found to be child in need of protection, pursuant to s. 11(b) of the CFSA, and he was placed in the custody of the Minister for period of three months. The order also included certain conditions for A.R. and A.T., related to addiction assessments, addiction treatment, drug screens and psychological assessments. subsequent three-month order was issued by this Court on July 17, 2015. [23] Ms. Millions remained involved in C.T.’s care until she left the employ of the Ministry in June 2015. She testified that, during the months immediately before her departure, there was little, if any, cooperation from A.R. and A.T. They did not cooperate in providing drug screens nor did they fully access the supports that the Ministry had put in place for both of them. [24] Following Ms. Millions’ departure from the Ministry, Melissa Hunt became C.T.’s child protection worker. From Ms. Hunt’s evidence, it is apparent that the parents’ lack of cooperation continued. Although both A.R. and A.T. had promised to comply with the conditions set out in the orders, little progress was shown. Both parents admitted to continued drug use with A.T. using cocaine while A.R. used crack cocaine. Despite these admissions, neither parent worked well with their respective addiction workers, nor did they express any willingness to seek out care at an inpatient treatment facility. By the time of the second three-month order, in July 2015, there had been no meaningful compliance with the conditions stipulated in the first order. [25] To compound problems, there were increasing cracks in the relationship between A.R. and A.T. relationship that had already been fragile for some time. Specifically, A.T. told Ms. Hunt that A.R. had been verbally abusive to him. In Ms. Hunt’s view, the domestic situation between the parents represented child protection concern that would seriously impact the prospect of family reunification. [26] In the meantime, the relationship between A.R. and her parents remained tense. A.R. continued to visit with C.T., but the visits were arranged and supervised by family support worker. According to Ms. Hunt, A.R. found it difficult to cooperate with the assigned worker and she remained unhappy about C.T. remaining with Mr. and Ms. R. On one occasion, in October 2015, A.R. told Ms. Hunt that, if she did not get different family support worker, she would cause such disturbance at her parents’ home that it would result in C.T. being removed from the home. By November of that year, the problem escalated further when the agency that supplied the family support worker terminated its assistance because of A.R.’s abusive behaviour and threats. [27] Aside from A.R.’s issues with the family support worker, the evidence at trial suggests that the frequency of visits, by both parents, were reasonably good during the summer of 2015, but had dropped off significantly in September. This prompted Ms. Hunt to prepare schedule that called for less visits, which was more in keeping with the visits that were actually taking place. She arranged meeting with A.R. to discuss the new schedule shortly after the visit in December. [28] This meeting also did not go well. In particular, A.R. became extremely upset when she learned that no visit had been set for Christmas day. She responded by threatening to kidnap Ms. Hunt’s children, just as she claimed the Ministry had done to her. Understandably, this was extremely distressing for Ms. Hunt. She contacted the local police service. As result, A.R. was charged with criminal harassment, contrary to s. 264 of the Criminal Code, RSC 1985, C-46. A.R. avoided incarceration pending trial by agreeing to number of conditions attached to her release, one of which was that she would have no contact with Ms. Hunt. [29] In the meantime, A.T. also had issues with police. According to the record presented before the court, he had eight Criminal Code convictions prior to C.T.’s birth. They included convictions for theft and possession of stolen property as well as failures to comply with undertakings and probation terms. Since C.T.’s birth, A.T.’s criminal activity has continued. He has since had convictions for impaired driving, driving while disqualified, operation of motor vehicle while pursued by police and, more recently, weapons offences. [30] Following the problems A.R. had created with the family support worker and Ms. Hunt, Mr. and Ms. R. agreed to supervise and schedule parental visits with C.T. Meanwhile, the Ministry initiated discussions with the maternal grandparents about possible designation as persons of sufficient interest pursuant to s. 23(1)(a) of the CFSA. Although initially reluctant to accept the designation, they eventually agreed. Accordingly, they were formally designated by an order of this Court, issued February 26, 2016. At the same time, the application for an indefinite person of sufficient interest order was made. [31] As earlier mentioned, both Mr. and Ms. R. testified at this trial. They are in their mid to late 50s and have each retired from their previous occupations. They have lived in Estevan since 1984, shortly before A.R. was born. In addition to A.R., Mr. and Ms. R. have two adult sons. A.R. is the oldest of their three adult children. To their knowledge, neither of A.R.’s brothers have any addiction issues. [32] Mr. and Ms. R. also testified to the parental visits they have been arranging since 2016, when the family support workers terminated assistance. Typically, the visits would be arranged as result of either A.R. or A.T. calling them and asking for visit with C.T., usually on the spur of the moment. Until A.R.’s relocation to Regina, each parent would usually have two visits per week, at various locations in Estevan. Since A.R.’s move to Regina, in September 2016, her visits have become considerably less. [33] A.T.’s present living circumstances were presented in his testimony. At the time of trial, he was living on his own in small apartment with month-to-month tenancy. A.T. expressed his intention that, if and when he is reunified with C.T., he will move into larger home that would better accommodate family. Beyond this comment, A.T. presented no evidence of family plan. [34] A.T. acknowledged his criminal record. He also acknowledged that he had been incarcerated earlier in 2017, having been sentenced to term of imprisonment for 110 days in February for the weapons offences earlier mentioned. [35] A.R. also acknowledged that her present living circumstances in Regina are not suitable for her to raise C.T. She is hopeful that, with continued progress in her personal life, she will soon be able to move into more suitable accommodations. [36] As for her past, A.R. candidly acknowledged her problems and difficulties, including the use of crack cocaine, volatile behaviour episodes and failure to comply with conditions. Despite this, she is optimistic about her future. A.R. testified that she has been subject to probation order, which was issued in the disposition of the criminal harassment charge. In A.R.’s view, this order has caused her to take steps to straighten out her life. She has arranged for drug screens and sought counselling. A.R. also believes that her relocation away from Estevan has allowed her to start new life, away from the bad influences. In answering one of my questions, A.R. said she has not arranged for inpatient treatment for her addiction. That said, she testified that she was not adverse to doing so. POSITIONS OF THE PARTIES [37] The Ministry’s position is clear. In order to serve C.T.’s best interests, some form of permanency in his life is required. At present, the most appropriate way in which this can be achieved is through an indefinite placement with C.T.’s maternal grandparents, as persons of sufficient interest. This would involve an order pursuant to s. 37(1)(b) of the CFSA. More particularly, the Ministry submits that neither A.R. nor A.T. have been able to place C.T.’s interests ahead of their own personal desires. Despite ample opportunity to change their behaviours, the Ministry contends that neither parent has demonstrated the kind of stability that would justify any form of reunification, now or in the foreseeable future. [38] A.T.’s position, as put forward by his counsel, was directed solely at the appropriateness of the type of order the court should make under s. 37. In A.T.’s view, this is not an appropriate case for the court to make an indefinite order for custody to be placed with the maternal grandparents as persons of sufficient interest. In its place, A.T. suggests a temporaryorder, of up to one year, under s. 37(7) of the CFSA. A.T. contends that,with this additional time, he will be able to demonstrate sufficient stability, both in his lifestyle and behaviour, that he would be able to resume parenting C.T. [39] A.R.’s position was presented primarily through her testimony. Despite the candid admissions in her testimony, A.R. contends that she is in position to change her life and lifestyle in much more positive way. She expects she will be in position to parent C.T. in the near future. Accordingly, A.R. also suggests that a temporary order would be appropriate. [40] The issues in this matter are relatively straightforward and can be identified with two questions: 1) Is C.T. in need of protection? and 2) If so, what is the appropriate order to serve C.T.’s best interests. LAW AND ANALYSIS [41] This application engages certain provisions of the CFSA, including ss. 3, 4, 11 and 37. Section describes the purpose of the CFSA, which is to promote the well-being of children in need of protection. Section 4, meanwhile, identifies the criteria court is obliged to take into account to determine the best interests of child. For the particular purpose of this application, the following criteria are noted: 1) the quality of the child’s relationships with people that are close to the child; 2) the child’s physical, mental and emotional level of development; 3) the child’s emotional, cultural, physical, psychological and spiritual needs; 4) the proposed home environment for the child; and 5) the care plans for the child of the person to whom custody of the child is to be entrusted. [42] Section11 defines the circumstances under which court is to find that child is in need of protection. As this definition is at the root of the CFSA’s purpose, it should be restated in full. The provision reads as follows: 11 child is in need of protection where: (a) as result of action or omission by the child’s parent: (i) the child has suffered or is likely to suffer physical harm; (ii) the child has suffered or is likely to suffer serious impairment of mental or emotional functioning; (iii) the child has been or is likely to be exposed to harmful interaction for sexual purpose, including involvement in prostitution and including conduct that may amount to an offence within the meaning of the Criminal Code; (iv) medical, surgical or other recognized remedial care or treatment that is considered essential by duly qualified medical practitioner has not been or is not likely to be provided to the child; (v) the child’s development is likely to be seriously impaired by failure to remedy mental, emotional or developmental condition; or (vi) the child has been exposed to domestic violence or severe domestic disharmony that is likely to result in physical or emotional harm to the child; (b) there is no adult person who is able and willing to provide for the child’s needs, and physical or emotional harm to the child has occurred or is likely to occur; or (c) the child is less than 12 years of age and: (i) there are reasonable and probable grounds to believe that: (A) the child has committed an act that, if the child were 12 years of age or more, would constitute an offence under the Criminal Code, the Narcotic Control Act (Canada) or Part III or Part IV of the Food and Drug Act (Canada); and (B) family services are necessary to prevent recurrence; and (ii) the child’s parent is unable or unwilling to provide for the child’s needs. [43] The determination under s. 11 is not measured against the standard of perfect parent. Rather, s. 11 requires determination as to whether the subject parents have met, or are able to meet, required threshold of parenting. The applicable test, which Megaw J. applied in L.L.-B. (Re), 2016 SKQB 237 (CanLII) [L.L.-B.], was described by Baynton J. in Saskatchewan (Minister of Social Services) S.E., 1992 CanLII 8071 (SK QB), [1992] WWR 289 (Sask QB) as follows, at 296: Counsel for the parents have quite properly pointed out that the issue is not whether the children might be better off, or happier, or obtain better upbringing in the care of other “parents” than with their natural parents. If that were the criterion for protection order, not many children would remain with their natural parents. The issue however really is whether the children concerned are receiving level of parenting care that is below the minimal standard that will be tolerated in our society. [44] In the present case, the Ministry’s position that C.T. remained child in need of protection was not seriously challenged by either A.R. or A.T. In the circumstances of this case, am more than satisfied that C.T. remains child in need of protection pursuant to s. 11(b) of the CFSA. With their present living circumstances, as well as the substance abuse and behavioural issues in both parents’ lives, find that neither A.R. nor A.T. are able and willing to provide the minimum level of parenting required for C.T.’s needs. am also satisfied that this failure is likely to cause C.T. physical and/or emotional harm. [45] The next question pertains to the appropriate order to be made once child is found to be in need of protection under s. 11. Section 37 sets out the tools available for the court to promote the well-being of child found to be in need of protection under s. 11. With emphasis on the specific provision raised by the Ministry, s. 37 reads as follows 37(1) Subject to subsection (2), if the court determines that child is in need of protection, the court shall make an order that the child: (a) remain with, be returned to or be placed in the custody of his or her parent; (b) be placed in the custody of person having sufficient interest in the child; or c) remain in or be placed in the custody of the minister for temporary period not exceeding six months. (2) If, in the opinion of the court, none of the orders described in subsection (1) is appropriate, the court shall make an order permanently committing the child to the minister. (3) Notwithstanding subsections (1) and (2), the court may, if it is of the view that: (a) child is in need of protection; and (b) by reason of the age of the child or other circumstances, it is unlikely that an adoption plan would be made if the child were permanently committed to the minister; order that the child be placed in the custody of the minister until the child attains the age of 18 years. (4) In making an order pursuant to subsection (1), (2) or (3), the court: (a) shall consider the best interests of the child; (b) may consider the recommendations of the officer mentioned in subsection 36(2); and (c) may consider the recommendations of chief, chief’s designate or an agency that appears in court pursuant to subsection (11). (5) In making an order pursuant to subsection (1) or (3), the court may: (a) impose any terms and conditions that the court considers appropriate; and (b) include in the order provision respecting access to the child. (6) If the court, in making an order pursuant to clause (1)(a) or (b), orders supervision of the child by the minister as term or condition of the order, the period of supervision shall not exceed one year. (7) In making an order pursuant to clause (1)(b), the court may direct that the order shall terminate after the expiry of period, not exceeding one year, specified in the order. (8) Any order made pursuant to clause (1)(a) or (b) or section 16 that is inconsistent with an existing custody order of superior court shall be considered an interim order that is subject to further order of superior court. [Emphasis Added] [46] The approach to be followed in cases of this kind was described by McIntyre J. in Saskatchewan (Minister of Social Services) E.K.S. (1996), 1996 CanLII 7131 (SK QB), 146 Sask 46 (WL) (Sask QB) [E.K.S.]. While the E.K.S. framework is now more than 20 years old, the approach described therein has stood the test of time and remains well-recognized. It was expressly confirmed by the Saskatchewan Court of Appeal in S.F. (Re), 2009 SKCA 121 (CanLII), 343 Sask 112 [S.F.]. More recently, the analysis and approach was followed by Goebel J. in Z.A.P. (Re) 2016 SKQB 47 (CanLII) as well as by Megaw J. in two judgments, L.L.-B. and S.U. (Re), 2017 SKQB 37 (CanLII). [47] The E.K.S. framework is laid out in paras. 44-48 of the judgment, which paragraphs were later repeated, with approval, in S.F. The relevant passage from E.K.S. reads as follows: 44 In determining whether any of the options in ss. 37(1) is appropriate number of principals can be taken from various reported decisions and the statute itself, keeping in mind that the decision must be reached in the context of determining what is in the best interests of the children. 1. The welfare of the child is the paramount (but not the sole) consideration. The wishes of the parent must be given independent subordinate weight. The weight will depend on the circumstances in each case. R. v. Saskatchewan (Minister of Social Services), 1974 CanLII 959 (SK QB), [1974] W.W.R. 388 at 393 (Sask. Q.B.) 2. Section 37(4)(a) does not declare that only the best interests of the child shall be considered. The implication is that the court may be mindful of other matters. As well, the list in s. is not exhaustive in determining the best interests of the child. Saskatchewan (Minister of Social Services) v. G. (R.) (1990), 1990 CanLII 7428 (SK QB), 88 Sask. R. 262 (Q.B.) 3. Any determination made must be in the context of the objective of the Act, set out in s. 3. C. (M.A.) v. Saskatchewan (Minister of Social Services) (1993), 1993 CanLII 9025 (SK QB), 46 R.F.L. (3d) 174 (Sask. Q.B.) 4. The court may consider the recommendation of the officer (representative of the Department) but is not bound thereby. 5. The court, having determined the child to be in need of protection, has determined that the level of parenting care is below the minimum tolerated by society. Therefore, in determining whether an order under ss. 37(1) is appropriate, including conditions which could be attached, the court must be satisfied either: (a) The parent or parents have altered his or her ways such that the circumstances which gave rise to the determination that the child was in need of protection no longer exist, or (b) The court is satisfied that there is realistic plan or reasonable basis upon which to conclude that the necessary changes can occur within reasonable time whereby the children can be safely returned to the care of their parent or parents. Saskatchewan (Minister of Social Services) v. J. (A.) (1987), 1987 CanLII 4660 (SK CA), 58 Sask. R. 246 (C.A.) Saskatchewan (Minister of Social Services) v. L. (M.) (1988), 1988 CanLII 4925 (SK QB), 71 Sask. R. 110 (Q.B.) C. (M.A.) v. Saskatchewan (Minister of Social Services), supra Saskatchewan (Minister of Social Services) v. G. (R.), supra 45 The court must look at various factors including (without meaning to be exhaustive of the possibilities) any changes in circumstance or conduct of the parent that has occurred or is proposed, any plan of corrective action that is being advanced, the nature of any resources suggested and the time frames which may be involved. The options in ss. 37(1) are premised upon reasonable prospect of change, within reasonable length of time and reasonable use of resources if needed. 46 In making an assessment as to whether an order under ss. 37(1) is appropriate the court must do so on the basis of the evidence before it. As noted by the Court of appeal in Saskatchewan (Minister of Social Services) v. J. (A.), supra, at 251: However, the following is self-evident. Where, as here, children have been placed into the temporary custody of the Minister, and the parents wish to have the children returned to them, they must make efforts to improve or remove the conditions or circumstances in the home which have resulted in the children being taken from the parents... 47 Counsel for the department said "good intentions are not sufficient" and relied upon the following observations of the Manitoba Court of Appeal in Children's Aid Society of Winnipeg (City) v. Redwood (1980), 19 R.F.L. (2d) 232 at 234 (Man. C.A.): ... The test is: What is in the best interests of these children, and not whether the mother has merely seen the light and is now prepared to be good mother, while in the past, on her own admission, she was not such. The test is whether the mother has in fact turned new leaf and whether she is now able to give to the children the care which is in their best interests. Good intentions are not sufficient. As the chief justice of this court, speaking in an unanimous decision in another case, stated so ably: "to give this mother another chance is to give these children one less chance in life." 48 The foregoing comments must be applied with caution. agree that good intentions by themselves are not sufficient. The question in every instance must be whether, on all of the evidence before the court, the court is satisfied sufficient change can occur within the context of an order under ss. 37(1) such that it is in the best interests of the child to make such an order. Given the objective of the Act as set out in s. 3, permanent committal does not ipso facto follow just because the parent has not yet turned that new leaf. [48] In the present case, it must be remembered that the Ministry is not seeking an order that permanently commits C.T. to the care of the Minister, as provided in s. 37(2) of the CFSA. Rather, the E.K.S. framework describes s. 37(1)(b) order as one of the options that “are premised upon reasonable prospect of change…”. That said, of the three options under s. 37(1), an indefinite persons of sufficient interest order is rather more long-term and is the closest option to permanent order. In other words, while the proposed order would not be a temporary order, it would not be as potentially immutable as a s. 37(2) order. [49] The essential difference between the parties is simply whether the appropriate order should be temporary or indefinite. Considering the various factors identified in the E.K.S. framework, this decision largely turns on whether there is reasonable prospect of change that will properly serve C.T.’s best interests and, if so, how much time and resources should be allowed for that change. [50] These questions can only be answered on an assessment of the evidence presented at trial. Based on that evidence, find that the prospect for change is, to this point, primarily limited to statements of good intention from both A.R. and A.T. While these statements may well be real, and should not be downplayed, they are, by themselves, insufficient. [51] Moreover, the statements of good intentions have been made in the wake of multiple lost opportunities. These opportunities were presented in the form of: 1) s. agreement; 2) successive temporary orders with associated conditions; 3) assistance of paid support workers; and 4) Ministry assistance in arranging drug screens and related supports. These were opportunities for the parents to demonstrate a reasonable prospect for change – something more palpable and more meaningful than any statements of good intentions could ever be. Instead, these opportunities were squandered by both parents. In the case of A.R., certain of these opportunities were not simply squandered. Rather, they were abusively rejected, sometimes in spectacular fashion. [52] One item that did not include on the above list is the role of Mr. and Ms. R. Their efforts to this point also reflect an opportunity that the parents, particularly A.R., did not take. Having seen both of A.R.’s parents on the witness stand, have no doubt that their decision to provide home for C.T. was borne of love, not just for their grandson but for A.R., as well. They did their best to maintain C.T.’s connection with the family, all with the hope that A.R. would take their assistance as an opportunity to make real changes in her life and resume her responsibility as C.T.’s parent. [53] In the face of the history of lack of cooperation and non-compliance with conditions, A.R. and A.T.’s respective statements of good intentions are not very compelling. am not persuaded that, at present, either parent is able to put C.T.’s best interests and welfare ahead of their own personal desires and inclinations. It necessarily follows that an indefinite order under s. 37(1)(b), as requested by the Ministry, should issue. [54] Before concluding this judgment, think it appropriate to reiterate an earlier observation. While an indefinite order is designed to provide some permanency in the arrangements for child, it is not unchangeable. Where parents, with the necessary self-reflection and insight, make meaningful and positive changes that speak well of their ability to parent, such orders can be changed. Depending on the extent of change, indefinite orders can even be terminated. [55] That said, such change is not always easy, and the necessary insight to make the change is often difficult to acquire. More importantly, where change is made and insight is acquired, it is rarely, if ever, done alone. hope that both A.R. and A.T. will take the time to reflect on the events that have led to this state of affairs. further hope that, after such reflection, they will each take the necessary steps and ask for the necessary help to move forward positively if not for their sake, for C.T.’s sake. CONCLUSION [56] In the result, there will be an order placing C.T. inthe custody of the persons of sufficient interest, Mr. and Ms. R., on an indefinite basis.

The Minister of Social Services applied for an order committing a two-year-old child to the care of his maternal grandparents for an indefinite period of time. The grandparents were previously designated as persons of sufficient interest. The child had lived with them since birth. The mother and father both suffered from addictions and had stopped living together by the time the child was born. The father had multiple criminal convictions, including drinking and driving offences and weapons offences. The mother’s relationship with her parents, family support worker and child protection worker during the course of the child’s life had been marked by volatility, argumentative behaviour and threats, one of which resulted in criminal harassment charges. The child was the subject of a protection order, which imposed conditions upon his parents. Neither meaningfully complied with the conditions set out in the protection order. Both parents testified at trial that their present circumstances were not suitable to raise a child. Each expressed intention to take steps necessary to provide a home for the child. Each parent asserted that a temporary order was appropriate. | HELD: The child was placed in the custody of his grandparents on an indefinite basis, which, while not temporary, was not as potentially immutable as a permanent order. That the child was in need of protection was not seriously challenged by either his mother or father. The prospect for change at the time of trial was limited to statements of good intentions. On their own, such statements were insufficient. There were opportunities for the parents to demonstrate a reasonable prospect for change. These opportunities were squandered and, in some cases abusively rejected by the mother.

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