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2001 SKQB 463 Q.B.G. A.D. 1998 No. 1040 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: NORTHERN RECYCLING LTD. and GARY PAWLIW and JOSEPH PAWLIW operating as Triple Holdings AND Q.B.G. A.D. 1998 No. 1041 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: NORTHERN METALS LTD. and GARY PAWLIW and JOSEPH PAWLIW operating as Triple Holdings DEFENDANTS Michael B. Griffin for the plaintiffs Gerald B. Heinrichs for the defendants JUDGMENT MacDONALD J. October 16, 2001 [1] It had been established that these two matters would be tried together and there are no substantive differences between the cases on the issues that determine the rights and obligations of the parties. [2] Accordingly, this judgment applies to both Q.B.G. No. 1040/1998 and Q.B.G. No. 1041/98. [3] There are two contracts that play in this case: The contract between the City of Regina and Triple Holdings operated by the defendants; The contract of January 21, 1997, between the respective plaintiffs in each action and the same two defendants in each action. [4] The plaintiffs have constructed their cases in reliance upon the overall affect of both contracts with specific emphasis on the contract of January 21, 1997. PRIVITY OF CONTRACT [5] The defendants have pleaded that there is no privity of contract between the plaintiffs and the City of Regina and that the plaintiffs are thereby prevented from enforcing the terms as agreed by the City of Regina and Triple P Holdings. [6] The issue of privity of contract could have been a critical issue in different circumstances but, in the end, this case will not turn on the question of privity. [7] While, strictly speaking, the plaintiffs were not actual parties to the contract with the City of Regina, the general thrust of all of the evidence was that certain benefits were intended to pass through the general contract to the members of the Independent Truckers Association. [8] It is not clear from the evidence whether all the parties intended that all contracts and arrangements be taken as one overall agreement and enforced accordingly. For determination of the case here will look to see if the plaintiffs have made out the case that they have constructed. [9] The single issue of privity is overwhelmed by the larger issue as to what really is the contract alleged to have been breached. [10] If the plaintiffs had intended to present the case that the contract was the whole arrangement between the City, the Association, the contractor and the truckers, then they would have had to draw in all of the parties, including the trucking association and the City of Regina as well as all of the related documents. [11] must decide the case as presented; that the plaintiffs are entitled to damages from the defendants for breach of contract dated January 21, 1997 and with reference to the contract between the defendants and the City of Regina. [12] The first breach of contract complained of is that the defendants failed to apply the rotation of truckers described in the arrangement between the City of Regina and the Independent Truckers Association. [13] The factual evidence here is in conflict but find that the defendants made some effort to include the plaintiffs in the rotation. [14] Problematically, for the plaintiffs, there is no contractual obligation in the agreement of January 21, 1997 which requires the defendants to adhere to any particular arrangement on the rotation of work and the contract between the defendants and the City of Regina is not incorporated by specific or general reference. [15] The contract of January 21, 1997, obligates the trucker to provide services according to set of rules. The contract goes on to specify the contractors obligations to pay in the event services are provided by the trucker. [16] But there is no corresponding obligation on the part of contractor to call for such services. [17] The plaintiffs cannot therefore make out their case of this alleged breach of contract. [18] The second breach of contract alleged by the plaintiffs is that the defendants took too many hours on the total contract. The plaintiffs say that the defendants are entitled to maximum of 10% of the whole available hours on the work with the City of Regina and that by taking more hours, they broke the arrangement and these "excess" hours should be used in calculating an allotment on the rotation. [19] The contract of January 21, 1997 is silent on this issue. [20] The plaintiffs rely on s. of the 1997 Tender for Rental of Trucks Specifications. Section of the specifications does not say in any respect what the plaintiffs allege it does and it is totally silent on the interpretative issue about how much work the contractor can do in total. [21] The first sentence of s. 9 of the specifications is more consistent with what was actually done by the defendants than with the interpretation put on it by the plaintiffs. [22] The plaintiffs have failed to make out a case that the contract term was as alleged on that breach and that any breach occurred. [23] It is incumbent upon me to deal with findings as to damages even though have found there is no entitlement. The damages claimed by the plaintiffs are excessive and do not properly take into account: (a) Actual operating expenses for the time complained about; (b) The net affect of mitigating factors; and (c) reliable calculation of the administration of the rotation of work. [24] Even if the case on entitlement had been made out the damages could not have been properly determined without further evidence or representation. RESULT [25] Accordingly, each case is dismissed.

This judgment applies to both QBG No. 1040/98 and QBG No. 1041/98 respecting the contract between the city and Triple P Holdings and the January 21, 1997 contract between the plaintiffs and the defendants. The first breach of contract concerned a failure to apply the rotation of truckers described in the arrangement between the city and Truckers Association. The second breach alleged the defendants took too many hours on the total contract. Both matters were tried together. The defendants pleaded there was no privity of contract between the city and plaintiffs, therefore the plaintiffs could not enforce terms agreed to by the city and Triple P. HELD: Both actions were dismissed. 1)The case did not turn on the issue of privity. While the plaintiffs were not actual parties to the contract with the city, certain benefits were intended to pass through the general contract to members of the Truckers Association. 2)There was no contractual obligation in the 1997 agreement which required the defendant to adhere to any particular arrangement on the rotation of work. The contract between the defendants and city was not incorporated by specific or general reference. The first sentence of s.9 of the 1997 tender for rental of truck specifications was more consistent with what was actually done by the defendants than with the interpretation put on it by the plaintiffs. They failed to make out a case that the contract term was as alleged or that any breach occurred. 3)Had a case been made out, further evidence of damages would be required. The damages claimed were excessive and did not properly take into account actual operating expenses, the net affect of mitigating factors, and reliable calculation of the administration of the rotation of work.

5_2001skqb463.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2003 SKCA 029 Date: 20030312 Between: Docket: 683 Garry Francis Bogdan (Respondent) Appellant and Katherine Jane Bogdan (Petitioner) Respondent Before: Tallis J.A. Counsel: Janice E. Gingell for the Appellant Ramond Wiebe for the Respondent Application: From: FLD Div. No. 467 of 2000, J.C. of Saskatoon Heard: March 12, 2003 Disposition: Allowed Written Reasons: March 12, 2003 By: The Honourable Mr. Justice Tallis TALLIS J.A. (orally) [1] The appellant has appealed an order granted in Queen’s Bench (Family Law Division) on January 3, 2003 which reads in material part:1. The Respondent’s income is found to be $83,611.00. Therefore he should pay child support for Jeffrey John Bogdan, born on November 9, 1980 commencing September 1, 2002 in the amount of $633.00 per month.2. The Respondent shall pay 79% of the following Section 7 expenses which are found to be necessary and reasonable: Bus pass 49.00 Physio 103.74 School bag 113.00 Sport lab book 84.90 Stats. book 120.86 Gymnastics manual 22.00 Commerce 7.00 Tuition 4,195.03 Less: Scholarship 2,200.00 TOTAL 2,495.53 79% $1,971.47 For the purpose of apportioning the Respondent’s share, the Petitioner’s income is $21,690.00 for the calendar year 2002. 3. Should the income of either party change subsequent to this Order the Respondent’s share of future Section expenses shall change accordingly. 4. The Respondent shall pay costs to the Petitioner in the sum of $450.00 Following issue of this order, the respondent took enforcement proceedings. [2] The appellant now moves for an order under Rule 15 staying execution and garnishment proceedings with respect to para. 2 and para. 4 of the above order. [3] The appellant did not appear in chambers on the return date of the application for variation and now questions the validity of service by mail. He appears to take the position that personal service was required. [4] The Queen’s Bench file indicates that the application was served by mail addressed to his home address an address which he designated as his address for service upon electing to represent himself.[1] [5] Whether the appellant was validly served under the Queen’s Bench Rules is an issue that will have to be properly presented and determined by the division of the Court hearing the appeal. From the material filed on this application one can infer that the appellant received the material in the mail, but decided not to appear because of his view that personal service was required. [6] As result of his non-appearance at the hearing, the presiding judge did not have the benefit of any evidence or submissions from the appellant. The judge decided the application on the evidence before him. [7] In my opinion, the appellant might well have brought an application in Queen’s Bench under rule 271 which reads: 271 Any verdict or judgment obtained, where one party does not appear at the trial, may be set aside by the court upon such terms as may be just, upon an application made within 15 days after the trial. This would have been more expeditious procedure. [8] Since this is the type of appeal that can be expedited, I am persuaded on the basis of the material before me to grant the stay. The monies paid into Court before this Rule 15 application launched will remain in Court pending the hearing and determination of the appeal. [9] With respect to the appeal, give the following directions: (1) The appellant having served his appeal book and factum on March 11, 2003, direct that the respondent serve and file her factum on or before March 26, 2003; (2) The Registrar will arrange an early date for hearing this expedited appeal. [10] Costs of this application are reserved for disposition by the division of the Court hearing this appeal. [1]See Affidavit of Earla Brandt sworn and filed on December 10, 2002 and letter of November 12, 2002 from Donlevy and Company to respondent’s solicitors..

The appellant sought an order under Rule 15 staying execution and garnishment proceedings with respect to an order granted in January 2003 for child support and s.7 expenses and costs. He questioned the validity of service by mail arguing personal service was required. HELD: Whether the appellant was validly served is an issue that will properly presented to and determined by the Court hearing the appeal. Bringing an application under Queen's Bench Rule 271 would have been a more expeditious procedure. The stay was granted since this was the type of appeal that can be expedited. The monies paid into court will remain in Court pending the hearing and determination of the appeal. Costs were reserved to the Court hearing the appeal.

4_2003skca29.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 12 Date: 2011 01 12 Docket: DIV. 400/1998 Judicial Centre: Regina, Family Law Division BETWEEN: SHERRI NYGREN and BLAINE JOHNSON Counsel: Jeffrey W. Deagle for Sherri Nygren Blaine Johnson appearing for himself JUDGMENT GUNN, J. January 12, 2011 [1] Amanda Nygren, born May 29, 1989 is the daughter of Sherri Nygren and Blaine Johnson. [2] This application deals with an application by Ms. Nygren for payment by Mr. Johnson of his pro rata share of the costs for Amanda’s post-secondary education expenses. PROCEDURAL HISTORY [3] June 20, 2008 Justice D.L. Wilson made series of orders in relation to the parties’ children. The relevant portion of the order in relation to Amanda is the following: 1.(b) The child, Amanda Nygren, born May 29, 1989, ceased to be child within the meaning of the Divorce Act commencing and including July 1, 2007. There shall be no child support payable with respect to this child commencing and including July 1, 2007. 4. The Petitioner’s application for support for Amanda Nygren in the event she attends post-secondary education is adjourned sine die returnable on 14 days notice to the Respondent, with the Petitioner filing all the necessary documentation regarding Amanda’s post-secondary education expenses. [4] In September of 2009 Ms. Nygren brought an application to vary paragraph 1(b) of the order of Wilson, J. She sought an order that Amanda Nygren (born May 29, 1989) was still child within the meaning of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) and an order requiring ongoing and retroactive payments by Mr. Johnson for some of Amanda Nygren’s extraordinary expenses for post-secondary education. [5] Justice Pritchard dealt with this application in October of 2009. Her order provides as follows: 1. The Petitioner’s application for child support for the university year of 2009/2010 has been abandoned. 2. The application for child support for 2008/2009 for university expenses is adjourned sine die returnable on 21 days’ notice, along with updated additional materials. 3. The parties are directed in the interim to attempt to settle the sharing of educational expenses the daughter has incurred in 2008/2009, in accordance with the decision of Madam Justice Wilson which clearly establishes an obligation on the father if Amanda did proceed with her plans as articulated in June, 2008 but not confirmed. To assist in the negotiations, the Court advises that the amount claimed as Amanda’s expenses for her year at school are excessive and do not bear proper relationship to her parents’ ability to pay. To express the Court’s displeasure with the mother’s application for child support for Amanda’s proposed program in 2009/2010 and her failure to disclosure[sic] that the program was part-time/evening, the Court awards costs of $1,000.00 payable by the Petitioner to the Respondent, Blaine Johnson, notwithstanding the abandonment of the claim by the mother, the Petitioner Sherri Nygren. [6] The parties were unable to settle the sharing of Amanda’s educational expenses for 2008/2009. Ms. Nygren’s application was returned to the chambers list in November of 2010 and adjourned to be argued in December of 2010. 1. Costs ordered by Pritchard, J. 2. Was Amanda Nygren child within the meaning of the Divorce Act while attending Confederation College in 2008-2009? If so, on what basis should support be provided by Mr. Johnson? Re: 1. Costs ordered by Pritchard, J. [7] Ms. Nygren did not pay the $1,000.00 costs to Mr. Johnson as ordered by Justice Pritchard. Instead, Ms. Nygren deposes she applied $1,000.00 directly to Amanda’s credit card balance. There is no evidence this was done with the agreement of Mr. Johnson. [8] Mr. Johnson seeks payment of his costs as ordered by the court. The fact that Mr. Johnson proposes to use those monies to assist Amanda, does not permit Ms. Nygren to bypass Mr. Johnson in the process. The costs are owing and shall be paid forthwith by Ms. Nygren to Mr. Johnson in accordance with the order of Pritchard, J. Re: 2. Was Amanda Nygren child within the meaning of the Divorce Act while attending Confederation College in 2008-2009? If so, on what basis should support be provided by Mr. Johnson? A. The Legislation [9] The provisions of the Divorce Act which have relevance to this application are as follows: 2.(1) In this Act, ... “child of the marriage” means child of two spouses or former spouses who, at the material time, ... (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life. [10] Section of the Federal Child Support Guidelines (SOR/97-175, as am) (the “Guidelines”) is also relevant: (1) Unless otherwise provided under these Guidelines, the amount of child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. (2) Unless otherwise provided under these Guidelines, where child to whom child support order relates is the age of majority or over, the amount of the child support order is (a) the amount determined by applying these Guidelines as if the child were under the age of majority; or (b) if the court considers that approach to be inappropriate, the amount that it considers appropriate, having regard to the condition, means, needs and other circumstances of the child and the financial ability of each spouse to contribute to the support of the child. (1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: ... (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; (e) expenses for post-secondary education; and (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. [11] Amanda attended the Educational Assistant Program offered at Confederation College in Thunder Bay, Ontario. Neither of the parties live in Thunder Bay so Amanda was living on her own. Ms. Nygren and Amanda depose that Amanda’s expenses for this year were in excess of $26,000.00. note that the spreadsheet setting out these expenses is titled “2008-2009 1st year of college”. The spreadsheet reflects expenses commencing August of 2008 and ending July of 2009. However the information on the duration of Amanda’s course of study would indicate that it was from September 1, 2008 to May 1, 2009. The expenses listed for the months not covered in the term of study are the following: August $2,781.25 May $1,608.49 June $1,464.70 July $1,591.93 Total: $7,446.37 [12] There are some expenses listed which bear highlighting. These expenses exclude the months of August, May, June and July discussed supra. Entertainment and Fitness $1,030.00 Cigarettes 66.19 Credit Card interest 155.88 Flight to Regina 344.75 Credit Card Insurance 76.43 Christmas gifts 150.00 Meals out 330.10 Total: $2,153.35 [13] Amanda deposes that her school expenses were paid from the following sources of income: Loan for $10,000 (co-signed by Ms. Nygren) Student loan $5,430.00 Amanda credit card debt $1,300.00 Money from Ms. Nygren $4,452.08 Amanda Employment income $3,067.65 Miscellaneous $1,426.70 [14] Amanda’s tax returns reflect the following income: 2007: $9,942.28 2008: $8,684.27 [15] Amanda did not do well in this program. Her transcript of marks was provided in response to Notice to Disclose. In the fall semester she took six classes with 48 credit hours for each. Her marks were 62, 66, 68, 68, 72 and 84. In the winter term she took six classes each with 48 credit hours. Her marks were 7, 26, 38, 43, 45 and 77. She passed only one class in this second semester. Amanda provided no explanation for her poor performance. [16] In Zaba v. Bradley (1996), 1996 CanLII 4930 (SK CA), 137 Sask. R. 295 (C.A.), 18 R.F.L. (4th) 1, the Saskatchewan Court of Appeal outlined number of factors court should consider in determining whether an adult child who is attending post-secondary education qualifies as “a child of the marriage” pursuant to s. of the Divorce Act. The factors set out in Zaba are the following: (a) Is the child eligible for student loans or other financial assistance? (b) Are the child’s career plans reasonable? (c) The ability of the child to contribute to his or her own support. (d) What were the parental plans for the child’s education, particularly those made during cohabitation? (e) Has the child unilaterally terminated his or her relationship with the payor? (f) Could the child reasonably be expected assistance if the marriage had not broken down? [17] Other factors which courts have considered in making this determination are the age of the child, the child’s academic ability, the possibility of securing employment at the end of the course of study and whether the child is full-time or part-time student. [18] The burden is on the applicant to prove the adult child’s ongoing economic dependence. (See Duncan v. Duncan (1989), 1989 CanLII 4502 (SK QB), 74 Sask. R. 100, 18 R.F.L. (3d) 46 (Q.B.); Whitton v. Whitton (1989), 21 R.F.L. (3d) 261 (Ont. C.A.), [1989] O.J. No. 1002 (QL); Law v. Law (1986), R.F.L. (3d) 458 (Ont. S.C.), [1986] O.J. No. 2513 (QL)). [19] In Hagen v. Rankin 2002 SKCA 13 (CanLII), 213 Sask. R. 257, the father was ordered to pay $605.00 per month, being the table amount on his income of $79,300.00 for his 18 year old son Landon who was attending university and living with his mother. The chamber judge declined to look beyond the provisions of clause 3(2)(a) notwithstanding the fact that Landon was earning significant amount of income. Landon earned in excess of $9,000.00 in 2000 and was expected to earn $11,000.00 in 2001. Deducting his expenses for tuition and books from this income and his post-secondary educational fund gave him between $7,000.00 and $9,000.00 on which to live. His father had also offered him an additional $200.00 per month, thinking Landon would apply this to his room and board. [20] Cameron, J.A. held that the presumption of clause 3(1)(a), which is engaged by clause 3(2)(a), is rebuttable, having regard for the actual needs of the children and respective means of the parents. Justice Cameron went on to hold that the chambers judge should have determined the amount of support payable by the father in accordance with the provisions of clause 3(2)(b) by having regard to the actual means and needs of Landon and the financial ability of each parent to contribute to his support. He ordered the father to pay the equivalent of one third of the table amount based on his income. He further determined that if the mother paid one third of the table amount based on her income, Landon would have sufficient income in light of his own financial resources. [21] It would appear from the applicant’s materials that Amanda is responsible for two loans. These would include the $10,000.00 loan co-signed by Ms. Nygren and Amanda’s student loan of $5,430.00. [22] Justice Smith in Beutler v. Maki 2005 SKQB 393 (CanLII), 273 Sask. R. 198 (QB) at para. 40 commented on this issue as follows: [40] If the case law is unsettled about requiring an adult child to obtain loan, would respectfully argue that it should not be. It is incumbent upon an adult child in university to contribute to the cost of securing his or her education. Whether that contribution is by way of earned income or earned income plus student loan, is function of the circumstances of each family and the expenses being faced. Analysis [23] I am satisfied that Amanda was a child within the meaning of the Divorce Act during the time she was attending classes. However what support she might anticipate receiving from Mr. Johnson during that time is more problematic. [24] Justice Pritchard has already indicated that she considers the expenses claimed by Amanda to be excessive. I agree with that conclusion. Approximately $7,500.00 is being claimed for months Amanda was not even in classes according to the material filed. In addition, there is at least another $2,100.00 of questionable expenses. That would take her more reasonable expenses to about $16,400.00. [25] Her poor academic performance is troublesome. The big concern is that Amanda has not explained it. Without evidence from her on this point it would seem that she was capable of passing her first semester, albeit with not very stellar marks. Mr. Johnson made it clear as early as October of 2009 that her poor performance was an issue for him. He deposed to the following in relation to the 2008-2009 school year: ... have not received requested disclosure of Amanda’s performance in 2008-2009 and other material set out in Notice to Disclose served September 10, 2009. However, Amanda herself advised me that she did not attend many of her classes, and that she did not pass or finish most of her courses in 2008-2009 at Confederation College (as detailed in paragraphs 12 to 14). 4. question Amanda’s choice of studies in both 2008 and 2009. In 2008, Sherri indicates that Amanda attended Confederation College in Thunder Bay, Ontario in the Educational Assistant Program first Early Childhood Learning. Attached as Exhibit “A” is print out regarding that course. However, from what Amanda advised me, she did not complete most of the classes (either dropped out or failed the courses). ... My understanding of her previous schooling at Confederation College was that is[sic] was “distance learning” meaning she did not have to attend the courses in person. She attended occasionally by video conference. question as result her needing to have an apartment close to the college as well as her indication of $90.00 for cab fare. would like the issue considered as to whether her attendance is considered to be full time or even part time given the number of classes that Amanda evidently passed in 2008-2009 as well as the fact that she chose to live close to the college when she did not need to be. 13. Amanda verbally advised that she received total of 10 credits (out of 43 or 44) for 2008-2009 school year. have never seen Amanda’s transcript of marks. [26] Yet in the face of these concerns being raised by Mr. Johnson, Amanda has given me no evidence to rebut Mr. Johnson’s information that she did not attend many of her classes. In my view Amanda must take greater responsibility for her own expenses and debts if she did not apply herself to her studies. [27] Given the issues discussed supra, it is my view that Mr. Johnson should not be ordered to pay the table amount. It is my view that an application of the provisions of clause 3(2)(b) having regard to the actual means and needs of Amanda and the financial ability of each parent to contribute to her support be considered. [28] Ms. Nygren’s total annual income for 2008 was $36,518.00. Mr. Johnson’s tax return for 2008 reflects total income of $66,869.00. [29] The bigger question is what Amanda’s needs should be found to be. Amanda earned $18,626.55 in 2007 and 2008 collectively. Yet she deposes that only $3,067.65 was used for payment of her expenses. She is responsible for some significant loans, but in my view she has responsibility to fund her own education, particularly when it appears she did not apply herself to achieving some success. [30] In all of the circumstances, it is my view that Mr. Johnson should match the amount paid by Ms. Nygren towards Amanda’s expenses. Ms. Nygren deposes she was fully supportive of Amanda’s choices throughout. Mr. Johnson deposes he was not. He shall pay the sum of $4,452.00 in full and complete satisfaction of any claim for retroactive child support for 2008-2009. [31] Given my earlier ruling with respect to costs, Mr. Johnson shall pay the sum of $3,452.00 on or before February 15, 2011. These monies may be applied by Mr. Johnson directly to Amanda’s outstanding debts.

The petitioner brought an application to compel the respondent to pay his pro rata share of the costs for the child's post-secondary education expenses. The petitioner had previously been ordered to pay $1,000 in costs to the respondent but instead paid the $1,000 directly into the child's credit card balance and there was no evidence that this was done by mutual agreement between the parties. The child was not performing well in her program with no explanation for her poor performance. HELD The burden is on the petitioner to prove the adult child's ongoing economic dependence. Although the child is a child within the meaning of the Divorce Act during the time she was attending classes, her expenses are excessive. The child provided no evidence to rebut the respondent's information that she did not attend many of her classes. The child must take greater responsibility for her own expenses and debts if she does not apply herself to her studies. The respondent was ordered to match the amount paid by the petitioner towards the child's expenses. The costs owed by the petitioner to the respondent are set-off against the amount owing; the respondent shall pay $3,452 to the child's outstanding debts by or before February 15, 2011.

b_2011skqb12.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 390 Date: 2013 11 21 Docket: NJ 4/2012 Judicial Centre: Regina PUBLICATION RESTRICTION: The publication of these reasons is restricted such that any information that could identify the complainants herein shall not be published in any document or broadcast or transmitted in any way. BETWEEN: HER MAJESTY THE QUEEN and OAKLEY ARNOLD MICHELIN Counsel: Erin L. Schrol and Maura Landry for the Crown Carson D. Demmans for the accused JUDGMENT DAWSON J. November 21, 2013 1. Oakley Michelin has been found guilty, after trial, of two counts of sexual assault contrary to s. 271 of the Criminal Code, R.S.C. 1985, c. C-46. CIRCUMSTANCES OF THE OFFENCES 2. These two offences occurred on February 25, 2011. There were two victims, J.M. and D.H. 3. Mr. Michelin and one of the victims, J.M., knew each other prior to the commission of the offence. 4. On February 25, 2011, J.M. called Mr. Michelin to ask him for cigarettes. J.M. and her friend, D.H., walked over to Mr. Michelin’s home to borrow some cigarettes from Mr. Michelin. When the two women arrived at Mr. Michelin’s home, they found that Mr. Michelin had been drinking. They thought he was drunk. The two woman stayed at Mr. Michelin’s home between ten and thirty minutes. While the women were there, Mr. Michelin touched J.M.’s breasts and vaginal area, over her clothing. Mr. Michelin also touched D.H.’s breasts and vaginal area, over her clothing. The touching was brief in both cases; matter of few seconds but no longer than minute according to D.H. Mr. Michelin asked both women to have sex with him. Both women told Mr. Michelin to stop the touching. The women left Mr. Michelin’s home shortly after the incident. THE ACCUSED 5. pre-sentence report was prepared by the probation officer and it provided pertinent background information in respect of Mr. Michelin. 6. Mr. Michelin is 61 years of age. He was born in Labrador and lived there until 1980 when he moved to Regina. Mr. Michelin is divorced and lives alone. He has no children. 7. Mr. Michelin indicates he only has one friend in Regina, but he does not see his friend very often. Mr. Michelin currently has 12 cats that keep him company. Mr. Michelin is on social assistance. He indicates he does not have any drinking or alcohol problems. 8. Mr. Michelin’s last employment was in 1992. He has been on social assistance since 1992. He indicates he has back problem. Mr. Michelin indicates that his back problem and his previous criminal record prevent him from gaining employment. 9. Mr. Michelin has previous criminal record. In 1992 he was convicted of sexual interference, contrary to s. 151 of the Criminal Code and sentenced to nine months incarceration, followed by one year probation. In 1999 he was convicted of sexual interference contrary to s. 151 of the Criminal Code, and sentenced to two years less one day incarceration followed by two years probation. Both victims of his previous sexual offences were children. 10. In addition, in 2002, Mr. Michelin was convicted of fail to comply with probation order and received $100.00 fine. In 2004, he was convicted of four charges of fail to comply with recognizance. These four charges relate to single incident where he attended the Calgary Zoo with friends and the friends’ children. Mr. Michelin was sentenced to 40 days incarceration, concurrent on each charge. 11. The probation officer conducted two risk assessments in preparing the pre-sentence report. The probation officer used the Saskatchewan Primary Risk Assessment, which is risk assessment for general criminal recidivism, to assess Mr. Michelin’s risk to re-offend generally. Using this tool, Mr. Michelin was assessed at medium risk for generalized re-offending. This tool is limited in its assistance in respect of sexual offenders, as it is generally recognized that measures used to predict general recidivism are not very effective in predicting sexual recidivism. 12. The Static-99 Risk Assessment was also employed by the probation officer. This is tool used to predict sexual recidivism. Mr. Michelin scored “one” on the Static-99 R, which places him in the low risk category for being charged or convicted of another sexual offence. CROWN AND DEFENCE POSITION ON SENTENCE 13. The Crown submits that sentence of two years incarceration, followed by three years probation would be an appropriate sentence in the circumstances for Mr. Michelin. The Crown filed the case of R. v. Bird, 2008 SKCA 65 (CanLII), 310 Sask.R. 222 in support their position on sentence. 14. Crown counsel, in sentencing submissions, suggested that Mr. Michelin’s criminal record establishes pattern of sexual assaults. Ms. Landry also suggested that an aggravating factor here is the fact that one of the victims, J.M., has severe cognitive impairment. Ms. Landry also suggested that Mr. Michelin’s previous relationship with J.M. established pattern of grooming. 15. Defence counsel acknowledged Mr. Michelin’s criminal record, but suggested that it does not establish pattern of behaviour, as there has been 14 years since Mr. Michelin’s last conviction for sexual interference. Defence counsel suggested that the court should impose sentence of probation. Defence counsel filed the following cases in support of that position: R. v. Ashby, 2011 SKQB 369 (CanLII), 384 Sask.R. 81; R. v. Epp, 2005 SKPC 71 (CanLII), 267 Sask.R. 191; R. v. Hayko, 1998 SKCA (Sent. Dig.) 58; R. v. Iron, 2005 SKCA 84 (CanLII), 269 Sask. R. 51. THE LEGISLATION 16. Section 718 of the Criminal Code sets out the purpose and principles of sentencing as follows: 718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (a) to denounce unlawful conduct; (b) to deter the offender and other persons from committing offences; (c) to separate offenders from society, where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or to the community; and (f) to promote sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community. 17. As well, s. 718.1 and 718.2 are relevant to sentencing: 718.1 sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 court that imposes sentence shall also take into consideration the following principles: (a) sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, ... (ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner, ... (b) sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; ... (d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. 1. Is Mr. Michelin eligible for conditional sentence order? 18. The relevant provisions of the Criminal Code in force at the time of these offences do not allow a conditional sentence. The offence took place on February 25, 2011. The relevant provisions of the Criminal Code in force at that time (for the period between December 15, 2010 and April 14, 2011) read as follows: Imposing of conditional sentence 742.1 If person is convicted of an offence, other than serious personal injury offence as defined in section 752, terrorism offence or criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by minimum term of imprisonment, and the court imposes sentence of imprisonment of less than two years and is satisfied that the service of 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 compliance with the conditions imposed under section 742.3. 19. Section 752 provided this definition of "serious personal injury offence": 752. In this Part, nan "serious personal injury offence" means ... (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with weapon, threats to third party or causing bodily harm) or 273 (aggravated sexual assault). 20. Section 271, at the time of these offences, provided: 271. (1) Every one who commits sexual assault is guilty of (a) an indictable offence and is liable to imprisonment for term not exceeding ten years; ... 21. As stated, at the time that Mr. Michelin committed these offences, s. 742.1 of the Criminal Code precluded the use of a conditional sentence order for a “serious personal injury offence” which carried a maximum penalty of 10 years, when that offence was prosecuted by indictment. Sexual assault was defined as “serious personal injury offence” in s. 752. The offence of sexual assault under s. 271 carries maximum penalty of 10 years. Mr. Michelin was prosecuted by indictment here. conditional sentence order is not available in this case. (Also see R. v. Tuffs, 2011 SKQB 441 (CanLII), 381 Sask. R. 151, at para. 6, [varied 2012 SKCA (CanLII), 385 Sask. R. 178]). 2. What is the appropriate range of sentence? 22. The Crown and defence both filed cases setting out various sentences. In addition to these cases have considered other sentencing decisions to determine the range of sentence for sexual assaults similar to the facts in this case. 23. The Saskatchewan Court of Appeal in R. v. Revet, 2010 SKCA 71 (CanLII), 350 Sask. R. 292, said the following about sentencing in relation to major sexual assault: [24] This Court has repeatedly held that in major sexual assaults involving adult offenders and victims, three years would be considered starting point from which sentencing judge should start, increasing or decreasing the term according the aggravating and mitigating factors: R. v. A.W.C.,2007 SKCA 87 (CanLII), 304 Sask. R. 224, and the cases cited therein. [25] In this case, useful comparison may be made with sentences for sexual assaults upon women who were incapable of giving consent at the time of assault due to being under the influence of alcohol, drugs or sleep, or combinations thereof. These have been treated by this Court as sexual assaults drawing the same starting point sentences as those in all other major sexual assaults: R. v. A.W.C. [26] There is no reason why the same starting point should not be used in case such as this. Sexual assaults upon children are at least as high in terms of gravity, if not higher, than sexual assaults upon adult persons. 24. Other cases also provide guidance. In R. v. Hayko, supra, (a somewhat dated case) the accused was 26 year old single male suffering from epilepsy. He had Grade to education level and drinking problem. He was employed at low level position in his father’s company. During the course of his employment, the accused sexually assaulted and harassed four female employees over period of two years. This involved touching the complainants’ breasts and buttocks, kissing them, and brushing against their bodies. The accused used his status as the boss’ son to intimidate the complainants. The accused did not appear to have prior record. The accused entered guilty plea at the preliminary hearing. The original sentence of $2,000.00 fine and 18 months probation was upheld on his appeal, with the Court of Appeal noting that “certain leniency” had already been granted to the accused. 25. In R. v. Iron, supra, the complainant was hosting joint stag/stagette party for the accused and his fiancé. The accused had 20 drinks over the course of the evening. The complainant awoke to find the accused on top of her. The accused kissed the complainant. He fondled her breasts and digitally penetrated her vagina. The accused had two prior convictions for assault, and persistent problem with alcohol. The trial judge imposed conditional sentence of two years less day. The Court of Appeal set aside the sentence and imposed 20 month sentence of imprisonment. Aggravating factors included lack of remorse, sleeping complainant, and small degree of violence. 26. In R. L.T.W., 2006 SKQB (CanLII), 280 Sask. R. 254, the 13 year old complainant and her sister were approached by the accused in his store. The accused told the complainant’s sister to leave the premises. The accused grabbed the complainant’s breasts from behind and squeezed them. He asked her if she would “like to go downstairs to make some money.” The Queen’s Bench Justice overturned the initial three month custodial sentence and imposed three month conditional sentence. 27. In R. v. Bird, supra, the Crown appealed sentence of 12 months imprisonment and two years probation. The 14 year old complainant was babysitting at the accused’s home at the time of the offence. She was sleeping with the infant in the room and woke to find that the accused had removed her clothing. He fondled and kissed her breasts, stomach, and neck for 30 minutes. He threatened to kill her if she told anyone what had happened. The accused had 16 prior convictions, including convictions for sexual assault and indecent assault. The Court of Appeal held that the crime was serious with many aggravating factors. The Court of Appeal commented that sexual assault on minor will be treated with the utmost seriousness and must be subject to substantial periods of imprisonment, even where the accused is without criminal record. sentence of 30 months imprisonment was imposed. 28. R. v. Clark, 2008 SKQB 443 (CanLII), 326 Sask. R. 294 concerned an appeal from summary conviction. The accused was convicted on number of offences, including three convictions for sexually assaulting 14 year old children. global sentence of two years less day served in the community was imposed. The sentence was upheld on appeal from the Crown. The assaults did not involve penetration, but the accused was in position of trust. 29. R. v. Chrispen, 2009 SKCA 63 (CanLII), 331 Sask. R. 212, is instructive for cases involving brief sexual contact over clothing. The accused was initially sentenced to nine months incarceration. The accused’s appeal against sentence was allowed, with the Court of Appeal imposing nine month conditional sentence. 30. In Chrispen, the 18 year old complainant had advertised her vehicle for sale. The accused contacted her and arranged test drive. During the test drive, the accused braked suddenly on two occasions, putting his arm across the front of the complainant’s body, ostensibly in an effort to protect her. On both occasions, his arm touched the complainant’s upper chest. When the test drive was finished, the complainant sat in the drivers seat. The accused told the complainant that he had forgotten his phone in the vehicle. The accused reached across the complainant to retrieve the phone. In doing so the accused squeezed both of the complainant’s breasts over her T-shirt. The Court of Appeal noted that the offence was “at the lower end of the spectrum with respect to sexual offences that involve inappropriate touching. There was no violence and the touching was brief and took place over clothing” (ibid at para. 26). The court noted the offence was not committed against child and the accused was not in position of trust in relation to the complainant. The offence was singular incident, and the parties had no previous relationship. There was no historical or ongoing abuse. The criminal record of the accused was dated, but included over 40 break and enter and theft convictions for which he was sentenced to significant period of incarceration in 1994. He had no prior record for sexual offences. The court found that this was single incident of sexual touching that occurred over few seconds. The accused was assessed as low risk to re-offend. The Court of Appeal held that “the appropriate range for offences of this nature is conditional sentence ranging between three and twelve months” (ibid at para. 42). 31. In R. v. Tuffs, 2012 SKCA (CanLII), 385 Sask. R. 178, the Saskatchewan Court of Appeal spoke of the difference between sentence involving fleeting touching and one involving the use of physical force. In Tuffs, the complainant was an off-duty R.C.M.P. officer and the accused was local businessmen. Both attended house party. The complainant was sleeping in the basement when the accused moved onto the bed behind her, placed his hands down her pants, and touched her vagina. The accused grabbed the complainant’s hair to force her head around in an attempt to kiss her. There was no penetration. The incident took between thirty seconds to few minutes. The trial judge ordered suspended sentence and 18 months probation. The Court of Appeal varied the sentence, with Lane J.A. noting: 10 We are all of the view that sexual assaults of this nature should draw period of incarceration and, therefore, the sentence imposed was demonstrably unfit. The respondent used physical force which distinguishes this case from the cases of fleeting touching. (See, for example, R. v. Chrispen, 2009 SKCA 63 (CanLII), 331 Sask. R. 212 where conditional sentence was imposed.) ... 12 However, we agree with the trial judge this was case of sexual assault on the lower end of the scale. Although there was claim of bruising, the testimony of the investigating officer said it was slight and there was more of "redness." The duration of the incident was very brief, perhaps as little as 30 seconds and, after the complainant pushed off the respondent and told him to go upstairs, he said he was sorry and left. This is not to minimize the effect on the complainant who filed victim impact statement stating she was required to take time off work and was afraid of noises or movement when sleeping as such would scare her out of her sleep. She said she was forced to see psychologist and hated being left alone in the house. She said she found it extremely hard to leave the house on her own and she feared people around her, all as result of the assault. 13 We are satisfied in the circumstances of this case and, in particular, the limited force, the short duration, the lack of penetration and the immediate reaction of the respondent that he had gone too far, sentence of one year incarceration satisfies the sentencing principles and, in particular, does not offend the principle of parity. See, for example, R. v. Iron, 2005 SKCA 84 (CanLII), 269 Sask. R. 51 where the accused, with prior record including two assault convictions, fondled and digitally penetrated the victim and refused to stop until the victim pretended to cooperate was sentenced to 20 months incarceration which sentence took into account the accused having served part of the conditional sentence imposed by the lower court. The Court of Appeal in Tuffs noted the assault was still on the lower end of the spectrum, and was of short duration. The violence used against the complainant was minimal, resulting in “redness” instead of bruising. The Court of Appeal imposed sentence of one year incarceration. 32. In R. v. S.G.T., 2011 SKCA (CanLII), 366 Sask. R. 90, the accused was found guilty of sexually assaulting his 12 year old adopted daughter. The complainant awoke on two occasions to find the accused touching her vagina. On third occasion, the accused touched the complainant’s vagina while they were showering together. The trial judge’s sentence of 18 months imprisonment was upheld by the Court of Appeal. 33. In R. v. Ashby, supra, the accused appealed from conviction and sentence for charge of sexual assault. The sexual assault involved the touching of the complainant’s thigh. This was accompanied by suggestive comments that sex could be exchanged in lieu of payment for damage to the building in which the complainant had lived. Justice Schwann upheld the initial sentence of fine of $1,000.00 and nine month probation order. 34. R. T.T.L., 2012 SKPC 143 (CanLII), 407 Sask. R. 12 involved 29 year old accused who pled guilty to sexually assaulting 10 year old girl. The Crown proceeded summarily. The accused had spread the legs of the complainant and rubbed her vagina over her night clothes for few minutes. The complainant was the friend of the accused’s step-daughter. She was spending the night for sleepover. The accused claimed to have been disciplining the complainant, as he had noticed her engaging in sexually suggestive contact with his step-daughter about an hour earlier. The accused presented low risk to re-offend, either generally or sexually. However, the accused minimized his actions by claiming they were of disciplinary nature. Furthermore, he had no empathy for the effect of the offence on the complainant. Aggravating factors included the abuse of person under 18. However, there was no abuse of trust. The Provincial Court sentenced the accused to six month custodial sentence and one year probation. 35. R. v. Martell, 2012 SKPC 47 (CanLII), 392 Sask. R. 131 involved an accused with no prior record. The sexual assault was against an adult female. The Crown proceeded by indictment. The accused and complainant had attended wedding at Elk Ridge Resort where they, among others, had shared rented cabin. The accused had 15 alcoholic drinks during the evening. The complainant went to bed around 3:00 a.m. and fell asleep naked beside her boyfriend. The accused came into the bedroom, fondled the complainant’s breasts, removed his pants, and positioned himself on top of her. When the complainant awoke she participated briefly until she became aware that the accused was not her boyfriend. The assault lasted 20 seconds. The accused stopped immediately when the complainant indicated her lack of consent. The accused was chased out of the room by the complainant’s boyfriend, who proceeded to render beating unto the accused. There was no evidence of penetration or physical injury. The accused was sentenced to nine month incarceration, coupled with two years probation. 36. In R. v. R.L., 2013 SKPC 80 (CanLII), [2013] S.J. No 370 (QL), the accused pled guilty to assault under s. 266, prosecuted by way of indictment. Although charged with assault, the accused’s conduct was of distinctly sexual nature. The complainant was two months shy of her eighteenth birthday. The accused was her 58 year old uncle. She looked to him as father figure. At his home, the accused pushed the complainant onto his couch, and attempted to take off her clothes. The complainant began crying, but soon stopped as she felt helpless. The accused got on top of the complainant and attempted to undo her pants. The accused touched the complainant’s breasts and vaginal area over her clothing while touching himself under his pants. The accused denied the offence, and blamed the complainant. The accused was self-employed as carpenter. He was medium risk for re-offending generally, and high risk to re-offend sexually. The accused had lengthy, although dated, record for assault, gross indecency, indecent assault, sexual assault, and assault causing bodily harm. There was 17 year gap between offences; and the last sexual assault charge was 26 years prior. The accused was sentenced to 14 months incarceration followed by 12 months probation. 37. In R. v. A.B., 2013 SKQB 56 (CanLII), 413 Sask. R. 185, the accused was charged with sexual interference for touching, rubbing, and hugging 12 year old complainant over blanket. He later kissed her. The accused had criminal record for spousal assault. He was assessed as very high risk to re-offend, both sexually and violently. The accused was sentenced to nine months imprisonment and one year probation. 38. As can be seen from the cases, sentences for sexual assaults, at the lower end of the spectrum, that involve inappropriate touching range from sentence of fine up to sentence of 30 months incarceration. Many of the cases referred to involved the imposition of conditional sentence, which sentence is no longer available. However, those cases are still relevant as they suggest the appropriate period of custodial sentence, albeit at the time of those cases, the sentence was to be served in the community. The Saskatchewan Court of Appeal has indicated, however, that sexual assaults, even assaults on the lower end of the scale should draw period of incarceration. 3. What is the appropriate sentence for Mr. Michelin? 39. will deal firstly with the positions taken by the Crown on sentencing. The Crown bears the onus of proving any fact not admitted. It is the position of the Crown that the record of Mr. Michelin establishes pattern of sexual assaults. The defence counsel takes issue with this characterization. The Crown called no evidence other than the accused’s record on this issue. Mr. Michelin has two previous convictions of sexual interference on children. The most recent of these convictions was 14 years ago. am not satisfied that Mr. Michelin’s record establishes such pattern. 40. Crown counsel also took the position that it is an aggravating factor that J.M. is severely cognitively impaired. Ms. Landry argued, in oral argument, that J.M. was severely impaired. In written argument, the Crown asserted J.M. had noticeable cognitive impairment. J.M. testified at the trial. At the trial, both Crown counsel and defence counsel identified that J.M. had some cognitive impairment. However, neither suggested that J.M. was severely cognitively impaired. Neither counsel had any concern as to J.M.’s capacity to testify and did not suggest that it was necessary for the court to make any inquiry into her capacity or ability to testify. Having heard J.M.’s evidence, it was evident that she had some cognitive issues, but she was not, in my view, severely cognitively impaired. 41. Crown counsel also asserted that Mr. Michelin’s conduct established pattern of grooming in relation to J.M. The only evidence in respect of Mr. Michelin’s relationship with J.M. was from the trial. The evidence did not bear out this position taken by the Crown. There was evidence that J.M. had been involved previously in short relationship with Mr. Michelin. However, the evidence from J.M. appeared to indicate that it was consensual relationship and that the relationship ended consensually. After the relationship ended, J.M. and the accused continued to be acquaintances, such that J.M. sought out Mr. Michelin to get cigarettes and went to Mr. Michelin’s home to borrow cigarettes. The evidence did not indicate that D.H. had any prior acquaintance with Mr. Michelin. am not satisfied there was evidence of grooming. 42. In addition, Crown counsel, Ms. Landry, also challenged the probation officer’s assessment that Mr. Michelin was low risk to re-offend. However, Crown counsel, Ms. Schrol, acknowledged that the Crown was accepting that risk assessment. 43. The case filed by the Crown in support of its position on sentences is the case of R. v. Bird. The circumstances of Bird are far more egregious than the circumstances here. In Bird, the accused assaulted his 14 year old babysitter, who was babysitting in his home. The accused came home and found the victim sleeping with the accused’s infant. The accused removed the victim’s clothing, fondled her breasts, stomach and neck for 30 minutes. This was skin to skin touching. The accused threatened to kill the victim if she told anyone. The accused was in position of trust and the victim was child. The accused had 16 prior convictions, including convictions for sexual assault. Mr. Bird was sentenced to 30 months. 44. The circumstances of the offences here fall on the low end of the sexual assault spectrum. Mr. Michelin was found guilty of touching the breast and vaginal areas of the two complainants. The touching occurred over the complainants’ clothing. There was no skin to skin contact. The incident occurred over a very brief period of time, being a matter of seconds, but no longer than a minute. The touching was fleeting, to use the terminology used by the Court of Appeal in Tuffs. However, unlike the facts in Tuffs, there was no physical force used. In this case, Mr. Michelin did not use violence. Mr. Michelin did not threaten either complainant. Neither complainant was physically harmed. The offence was simply touching. In Tuffs, there was skin to skin touching and physical force used, resulting in redness. The offence also had significant impact on the victim in Tuffs. 45. Mr. Michelin was not in position of trust or authority in relation to either of these complainants. Both complainants were adults at the time of the offence. It was the complainants’ idea to come to Mr. Michelin’s home. Both complainants left Mr. Michelin’s home after the incident, at time of their choosing. 46. Only J.M. filed Victim Impact Statement. J.M. said she simply wants to be away from Mr. Michelin. 47. The mitigating factors here include the fact that Mr. Michelin has been released for two and one-half years on his own recognizance and has abided by all conditions. It is mitigating that Mr. Michelin was assessed as low risk to re-offend. It is also mitigating that the facts of the offence are on the low end of the spectrum. 48. The aggravating factors here include that Mr. Michelin has two previous convictions for sexual offences. It is also aggravating that there were two victims, one of whom had some cognitive disability. 49. The Saskatchewan Court of Appeal has been clear that sexual assaults, even those on the low end of the spectrum, attract custodial sentence. Taking into consideration both the aggravating and mitigating circumstances, the principles of sentencing, the facts, the circumstances of Mr. Michelin, the jurisprudence and the principle of totality, I am satisfied a sentence of one year on each count, to be served concurrently, followed by two years of probation, with conditions, is appropriate. 50. As such, I sentence you, Oakley Michelin, to a sentence of one year on each count, to be served concurrently, followed by two years probation with the following conditions: (a) to keep the peace and be of good behaviour; (b) to appear before court when required to do so by the court; (c) to notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation; (d) to report to probation officer within two working days after release from custody and thereafter when required by the probation officer and in the manner directed by the probation officer; (e) to remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court or the probation officer; and (f) subject to the program director’s acceptance of Mr. Michelin, participate actively in and not cause to be discharged from sex offender treatment program approved by the province. 51. The Crown has asked that make an order under s. 487.051 of the Criminal Code for the taking of DNA samples. Pursuant to s. 487.051(2), the court shall make such an order unless Mr. Michelin has established that the impact of such an order on his privacy and security would be grossly disproportionate to the public interest. Mr. Michelin, here, did not seek such an exemption. There will be an order pursuant to s.487.051 authorizing the taking of samples of bodily substances that is reasonably required for the purpose of forensic DNA in accordance with that section. 52. There will also be an order pursuant to s. 109 of the Criminal Code prohibiting Mr. Michelin from possessing any firearm, crossbow or prohibited weapon and restricted weapon, prohibited device, prohibited ammunition and explosive substances for period of ten years. 53. The Crown also seeks an order pursuant to s. 490.012(1) requiring Mr. Michelin to comply with the Sex Offender Information Registration Act, S.C. 2004, c.10. Mr. Michelin has not suggested that such an order would impact his privacy or liberty or would be grossly disproportionate to the public interest. As such make an order in respect of Mr. Michelin under s. 490.012(1) for period of 20 years. J. C.L. DAWSON

HELD: The Court sentenced the accused pursuant to s. 742.1 of the Criminal Code in force at the time of the offence that precluded the use of conditional sentence order for a serious personal injury offence, which included sexual assault. The Court found that the offences fell on the low end of the sexual assault spectrum as there was no skin to skin contact, the contact was brief and without violence or threats. The aggravating factors were that the accused had two previous convictions for sexual offences and that one of the victims had some cognitive disability. The accused was sentenced to a term of one year imprisonment for each count, followed by a term of probation of two years. The sentences were to be served concurrently.

e_2013skqb390.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 412 Date: 2015 10 06 Docket: QBG 309 of 2015 Judicial Centre: Regina BETWEEN: COWESSESS INDIAN BAND NO. 73 and BRABANT AND COMPANY LAW OFFICE Counsel: Nathan Phillips for the plaintiff T. Joshua Morrison for the defendants FIAT BROWN J. OCTOBER 6, 2015 Introduction [1] The applicant, Cowessess Indian Band No. 73 [Cowessess], applies pursuant to s. 67 of The Legal Profession Act, 1990, SS 1990-91, L-10.1 [Act] for an assessment of all bills for legal services that Brabant and Company Law Office [Brabant] rendered to Cowessess within six years of the date of the application. The application proceeded on March 12, 2015. [2] For the reasons that follow, I dismiss the application. [3] Brabant is in essence Alan Brabant, sole practitioner, who provided legal services to Cowessess over 23 year period, beginning in 1992. The services were in relation to various matters of concern to Cowessess and could be described as being both the provision of general counsel advice and specific legal services on discrete files of corporate, commercial or litigation nature. Cowessess was involved in broad range of activities and Brabant’s services were provided on employment issues, various lawsuits, land claim negotiations and implementation, land acquisition, trust administration, natural resource development, corporate registrations as well as Band governance and development of bylaws and policies to mention few. [4] No formal written retainer was executed between Brabant and Cowessess, rather the relationship proceeded on verbal terms and mutual understanding. Services were requested and provided, bills for those services were rendered periodically and were in due course paid by Cowessess, at least until somewhat more recently. [5] The period of non-payment of some of the bills rendered by Brabant occurred few months before and following change in the Chief and Council of Cowessess on April 27, 2013, following Band election. With the new Band Council making decisions for Cowessess, Brabant’s services, while utilized initially, were eventually no longer sought. Phillips Co. became legal counsel for Cowessess at some point after the April 2013 election. [6] The situation is further complicated by the fact that political turmoil followed the Band election. One of the issues still being litigated is whether the current Chief is lawfully entitled to the position. On June 13, 2014 decision of the Federal Court removed him. The matter was appealed and on July 9, 2014 the Federal Court of Appeal granted stay of that decision. There are other matters stemming from this turmoil including banking institution refusing to recognize the Chief as entitled to the position and resulting refusal to recognize the trustees of the Treaty Land Entitlement Trust appointed by the Chief and recently elected Band Council. [7] In February 2015 Cowessess first passed resolution seeking to have Brabant’s legal services assessed. This in turn led to this application which Brabant opposes. Brabant has not been paid in full for several bills submitted from January 2013 to October 2014 totaling $53,059.71 exclusive of interest. [8] The entirety of the time period for which Cowessess seeks to have Brabant’s bills assessed is outside of the 30 day time period provided by ss. 67(1)(a)(i) of the Act which establishes an assessment as matter of right. [9] Section 67 of the Act reads as follows: 67(1) bill of fees or disbursements with respect to services performed by member may be assessed: (a) on application to the court: (i) by the person charged with the bill, within 30 days after the day on which the person received the bill; (ii) by the member, if no application is made pursuant to subclause (i); or (iii) by the person charged with the bill, after the expiration of the time set out in subclause (i), if the court is satisfied that it is in the interests of justice to do so; or (b) on application to the local registrar described in subsection (2), at the request of both the member and the person charged with the bill, at any time. (2) An application pursuant to clause (1)(a) shall be referred by the court to the local registrar of the court at the judicial centre nearest to which the member who performed the services carries on the member’s practice. (3) The court may restrain the bringing of an action with respect to that bill pending reference pursuant to subsection (2). (4) On an assessment of bill pursuant to this Act, the local registrar may order any further particulars or details of the services for which the bill was ordered. [10] In Doig Mazinke, 2007 SKQB (CanLII), 291 Sask 221, [Doig] Justice Popescul, as he then was, considered s. 67 of the Act: 10 The criteria which court must now utilize when considering whether or not to allow an assessment of lawyer's bill beyond 30 days from the day on which the person received the bill is considerably less stringent in the present legislation than it was in the replaced legislation. While the old Act contemplated "special circumstances" which suggested positive obligation on the applicant to set forth factors that establish the existence of circumstances that are out of the ordinary, the new legislation simply provides the court with the discretion to abridge the time if satisfied that, "... it is in the interest of justice to do so". interpret this to mean that the time can be abridged if the court is of the view that it would be fair to do so. [11] In Machula Kuse, 2011 SKQB 370 (CanLII), 384 Sask 86 [Machula] Ryan-Froslie J., as she then was, pointed out the criteria to be considered pursuant to s. 67 of the Act: nan review of the recent case law highlights number of factors that judges have used to determine whether to abridge the time for applications to assess legal bills. The list is not exhaustive and may be summarized as follows: (i) Any agreement between the solicitor and his client with respect to fees and/or their payment (see: Greba v. Merchant Law Firm, 2010 SKQB 300 (CanLII), 360 Sask. R. 271 at para. 26; Ryan v. Watson, 2011 SKQB 278 (CanLII), [2011] S.J. 448 (QL) at para. 17); (ii) Whether the bill was final bill or an interim bill subject to adjustment (see: Postnikoff v. Morrison, 2008 SKQB 210 (CanLII), [2008] S.J. No. 297 (QL) at paras. 23 and 24); (iii) The nature of the work performed and the amount of the bill submitted (i.e. was there prima facie an overvaluing or undervaluing of services) (see: Greba v. Merchant Law Firm, supra, at para. 20(f) and Ryan v. Watson, supra, at para. 19); (iv) Whether law suit has been commenced for the collection of the account (see: Doig v. Mazinke, supra, at para. 11, Greba v. Merchant Law Firm, supra, at para. 20(d) and Postnikoff v. Morrison, supra, at para. 25); (v) The length of time being abridged (see: Doig v. Mazinke, supra, at para. 11, Greba v. Merchant Law Firm, supra, at para. 20, Postnikoff v. Morrison, supra, at para. 21); (vi) Whether the client ever complained about the services rendered and/or the bills and the timing of those complaints (see: Doig v. Mazinke, supra, at para. 11, Postnikoff v. Morrison, supra, at paras. 21 and 23 and Agioritis v. Merchant Law Group LLP, 2009 SKQB 425 (CanLII), 344 Sask. R. 283, at paras. 13 and 16); (vii) Whether either party would be prejudiced by the abridgment of time (see: Doig v. Mazinke, supra, at para. 11, Greba v. Merchant Law Firm, supra, at para. 20, Postnikoff v. Morrison, supra, at para. 25); (viii) Whether the accounts were paid and, if so, the circumstances of that payment (i.e. from trust, from settlement proceeds, by the client, etc.) (see: Postnikoff v. Morrison, supra, at para. 25, Agioritis v. Merchant Law Group LLP, supra, at para. 14); and (ix) Any misrepresentation, fraud or dereliction of duty by the solicitor. (see: Agioritis v. Merchant Law Group LLP, supra, at paras. 12 and 15). [12] Justice Ryan-Froslie went on to observe that these considerations were the same as those set out by Klebuc J. (as he then was) in Isley Thorstad Danyliuk (1993), 1993 CanLII 8892 (SK QB), 110 Sask 100 (QB) [Isley], even though Isley dealt with an application for “taxation” pursuant to the earlier emanation of s. 67 of the Act. She noted that the section had been amended and the grounds for extending the time for such applications was changed from one of “special circumstances” to situations where it is “in the interests of justice” to do so. Nonetheless: 10 In considering an application under the current section, court may consider the same type of factors as set out in Isley v. Thorstad and Danyliuk, supra but as pointed out by Popescul J. in Doig v. Mazinke, supra at para. 10, the test is less stringent and is based on fairness. [13] Several cases since Machula have considered the question of how achieving the interests of justice by way of fairness is accomplished. In Salyne Walen, 2012 SKQB 139 (CanLII), 395 Sask 229 [Salyne], Justice Smith addressed the question in the context of how the amount of time that has elapsed after payment of the bills, and without complaint, factors into the matter. Some 20 accounts had been rendered and paid over the course of four years. Smith J. indicated at para. 11 that fairness requires client to raise any concerns they have with the account within reasonable time. Having not done so, it was not in the interests of justice to extend the time beyond the 30 days for an assessment of the accounts. [14] In Litzenberger Cook, 2014 SKQB 365 (CanLII), Justice Dufour found that the list of factors to consider as set out in Machula are non-exhaustive (see paras. 14-15). He also recognized that fairness applies in respect of both the applicant/client and the lawyer (see para. 4). Evidentiary Requirement [15] In Isley Klebuc J. recognized evidentiary requirements that properly apply to client seeking to have bill assessed. He noted that the basis for the taxation ought to be clearly identified. As well, where certain concerns with the bill are alleged, full particulars ought to be provided. At p. 111 he said: 3. Where gross inefficiency, fraud or other dereliction of duty by the solicitor is alleged, all of the facts on which the applicant is relying must be set forth; 4. Where overcharging is alleged, the full particulars of the alleged overcharging must be set out, including specific reference as to what charges in the solicitor's bill are excessive or in breach of the terms of the solicitor's retainer; Application [16] As with Salyne, will apply the relevant criteria here in order to ascertain whether Cowessess’ request is fair and whether the extension of the 30 day time period in which to order the assessment that they request is in the interests of justice. (i) Any agreement between the solicitor and his client with respect to fees and/or their payment [17] While the retainer was verbal, and there is good reason to reduce retainers to writing, that is not to say verbal retainers are unenforceable or must be by necessity treated with great suspicion. As pointed out by the Alberta Court of Appeal in Samson Cree Nation O’Reilly Associés, 2014 ABCA 268 (CanLII), 375 DLR (4th) 663, where the agreement is clear, it is not subject to being impugned, even if oral in nature. The existence of an oral agreement, while potentially more difficult to prove, is nonetheless valid contract. While care is appropriately advised when dealing with such agreements there is no strict requirement that there be written retainer. [18] Beginning in 1992 Brabant had an arrangement with Cowessess in which he would be asked to provide legal services, he would provide them and he would render bill to Cowessess. This arrangement went along without controversy until the new leadership at Cowessess altered it. [19] For in excess of two decades and through many different emanations of the Chief and Council, the arrangement was satisfactory to both Cowessess and Brabant. The affidavits provided by at least two Chiefs as well as Council members with direct and long-term experience with Brabant confirm their confidence in him and his legal services. The arrangement only came into question in 2015, subsequent to the election of new Council. [20] Even after the 2013 change of leadership the agreement with Cowessess carried on for some time. Brabant’s services were utilized and there was part payment of the bills that were provided. Valerie Tanner indicated to Brabant in April 2014 that lateness of the Cowessess audit had put financial strain on Cowessess but they were looking at paying bills in short order. [21] In addition, there were discussions and meetings with representative from the Band, Glenn Saganace, Cowessess’ Operations Manager, leading to what Brabant reasonably believed was an agreement in early December 2014 regarding full payment of the outstanding amounts. (ii) Whether the bill was final bill or an interim bill subject to adjustment [22] There is no indication in the evidence that any of the bills were not final in nature. While there will always exist the possibility of an assessment or renegotiation of bill once rendered, nothing put forward here indicated that the bills were intended to be merely interim with final or total billing coming at some point down the road. The bills were final in nature. (iii) The nature of the work performed and the amount of the bill submitted (i.e. was there prima facie an overvaluing or undervaluing of services); [23] There is nothing in the evidence that indicates there was prima facie overvaluing or undervaluing of the services provided prior to January 2013. The general complaint from Cowessess centers around their belief in an overall amount of billings over lengthy period, this application covering 2009 2015, with specific attention being given to 2011 2013. [24] Ms. Tanner sought to provide some detail regarding few particular matters which indicated she was suspect of either the timing or amount of work remaining. However, her affidavit is not based on personal knowledge. Responding affidavits from former Chiefs and Council members with personal knowledge establish the facts in this regard. [25] In addition, while not set out in the affidavits but raised in argument, the complaint expanded with respect to some entries in some of the bills themselves regarding what was described as “block billing”. “Block billing” is an amount of time for which fees were charged but which Cowessess complains did not have sufficient details provided for the activity undertaken. [26] Brabant points out that the internal accounting document Cowessess created and put forward for the amount they believe was billed and forms the basis for Cowessess’ concerns is vague, general in nature and inaccurate. He notes that the information Cowessess relies on is lacking; it does not contain any record of the dates when accounts were submitted by Brabant; it is purportedly for 2011-2013 but contains an entry shown as “August October 27, 2010”; it duplicates entries and therefore involves some element of double counting; it includes disbursements and at least one trust payment which are not legal fees at all. Thus the information put forward by Cowessess does not represent what Cowessess says it does and cannot be relied upon in making the determination herein. [27] I agree that the information put forward here on which to direct an assessment of six years of legal services covering a multitude of issues on a substantial number of files should be much more specific. While different considerations might well apply if single file were the subject of request for an assessment, that is not the case here. Nor is this either an unsophisticated client or one with communication challenges such as language barrier, factors that have been of some consequence in other applications for assessments outside of the 30 days. It is not sufficient to make general complaint that the services seem to represent large sum and expect six years of complex ongoing relationship to thereafter be scrutinized in detail. [28] This conclusion is supported by the affidavit evidence provided by the Chiefs and Council members from the time when services were provided. They indicate that they were pleased with the services Brabant provided and take no issue with the amounts charged for such services. To prefer general statements of concern related to time period many years earlier over the evidence of those who were actually receiving the advice and who indicate they were both pleased with it and had no issue regarding the cost is not fair approach. [29] While the affidavit of Ms. Tanner was filed late, in contravention of Justice Kovach’s timetable, even if it is considered it adds little value. She was not Council member at the relevant time and relies on hearsay from current legal counsel and others. The information she presents is not from her own direct observations and conflicts with the evidence provided from sources who had the opportunity to directly observe. It is therefore not sufficient to require Brabant to retrace and justify six years of billings on the plethora of legal matters he was involved in with Cowessess. [30] Nor would it be fair to allow counsel to fill in the gaps in the evidence through argument. The notion of “block billings” arising in argument and not being based on concerns expressed by the applicant is problematic. However, even if considered, the “block billings” complained of during argument are not numerous. Nor are the ones identified sufficient to add the requisite detail to the otherwise general approach taken here. In looking at the entries specifically identified by applicant’s counsel they appear to be straightforward and, when shown in an amount of several hours, are noted as “preparation for and attendance at band information meeting”, whether it be in Calgary, Edmonton, Saskatoon, Winnipeg or elsewhere. They do not add the information necessary to justify going back six years in the circumstances here. (iv) Whether law suit has been commenced for the collection of the account [31] No lawsuit has been commenced by Brabant in relation to the bills, including the unpaid ones. With respect to the more recent bills that remain unpaid, Brabant has utilized various means at his disposal to attempt to prompt payment. As indicated, Ms. Tanner indicated this by email in April 2014. Brabant was assured that payment would be forthcoming through their Operations Manager, Mr. Saganace. No affidavit contradicting this was provided by Mr. Saganace. (v) The length of time being abridged [32] This is substantial concern in this matter. Even the most recent bills which have not been fully paid are not particularly current, being no more recent than October 2014. The bills which have been paid range from being six years prior to the application to being over two years prior to the application. [33] This length of time is highly unusual and, if there is to be requirement that Brabant attend for an assessment, should be accompanied by clearly outlined reasons justifying going back six years. Evidence must establish the appropriateness of doing so. This is additionally important where it is not single file that is at issue but multitude of files, multitude of consultations covering wide variety of subjects over lengthy time period. It attempts, in essence, to assess an ongoing relationship rather than the provision of services on particular matter. [34] The requisite evidence and accompanying reasons which must exist to require the rather far reaching relief sought in this matter, even when measured on the less stringent, fairness-based standard recognized by Justice Ryan-Froslie in Machula, have not been provided. There are general observations and concerns expressed, however these do not provide the type of information required so as to create the obligation for Brabant to unearth the extensive information with respect to legal services covering such broad range of matters dating back six years. This relationship is that of general legal counsel and long-term client as opposed to the retention of counsel on discrete file. This brings with it corresponding considerations when evaluating fairness. [35] very high level of disruption to Brabant is being proposed long after the events have occurred. The circumstances do not warrant this. As observed by Smith J. in Salyne there ought to have been some indication of desire to assess his billings at much earlier time. Having not taken that opportunity, it is now not appropriate to go back six years in an attempt to assess each piece of legal advice and interaction with view to the relative value provided given the amount charged. (vi) Whether the client ever complained about the services rendered and/or the bills and the timing of those complaints [36] With respect to the bills that were paid there is no indication of complaints. Evidence of satisfaction from previous Chiefs and Council members was presented by Brabant. The bills rendered during the first 21 years of the relationship were paid in timely fashion, confirming satisfaction with the legal services provided at the rate charged. [37] After October 2012 different situation arose. Payment was not made on timely basis. While part payment occurred, $53,059.71 was outstanding by October 2014. The new Band Council did ultimately seek to stop utilizing Brabant and changed counsel. [38] Inquiry into Brabant’s accounts suggesting to him potential concern with the accounts themselves began in late 2014. While there had been turmoil at Cowessess there were no expressions of discontent with his work or his bills. It is reasonable to conclude the issue was internal and not service or amount related. [39] It is not established that there were complaints made to Brabant by Cowessess, even during the post-election period. On December 11, 2014 request was made by Mr. Phillips for Brabant to provide six years of accounts. This was not complaint in and of itself. Even so, on December 8, 2014, several months after the last bill was rendered, Cowessess’ Operations Manager informed Brabant the Band was intent on paying the outstanding bills and Brabant understood that an agreement was reached in that regard. Cowessess made decision to seek an assessment in February 2015. [40] As such, even noting that there is potential difference in the two time periods based on full payment, no complaint as to the services or the bills was provided within reasonable period of time after they were rendered. (vii) Whether either party would be prejudiced by the abridgment of time [41] While counsel for Cowessess argued strenuously that the lawyer’s interests are not to be given any particular concern here, that is not what the law provides. Mr. Phillips relied heavily during argument on Vo Phillips Legal Professional Corp., 2014 SKQB 149 (CanLII) [Vo]. At para. 15 Justice Ball indicates that: ... Any determination of what is “just” requires balance to be struck between what is fair for the client, and what is fair for the lawyer. [42] It is clear that Brabant would be prejudiced if time was abridged as Cowessess requests. He would be required to attempt to piece together six years of billings on literally hundreds of different attendances and consultations. Again, this is not with respect to single file or even small group of significant files but rather it relates to great many activities from the very small to the very significant. He is still sole practitioner. It would mean putting his practice on hold for significant period of time to gather the information and refresh his memory on the multitude of different files, attendances and services. [43] Nor was Brabant notified he may be required to explain all of his bills within reasonable time after rendering them. There is no complaint in relation to particular file, rather it is general complaint based on the totality of legal fees and it is complaint brought forward very late in the day. As indicated previously, this is after the Operations Manager of Cowessess advised Brabant in December 2014 that they were intent on paying the outstanding accounts in the amount of $53,059.71. [44] While the applicant filed an affidavit of Ms. Tanner seeking to put the contents of that meeting in issue, her hearsay repetition of what Mr. Saganace purportedly told her is not proper evidence. If it was desired to put forward Mr. Saganace’s evidence he could easily have provided an affidavit. [45] The attempt to put the billings for certain files in issue as they purportedly were closed or inactive through Ms. Tanner’s affidavit is also flawed. In addition to being filed beyond the time required by Justice Kovach, she relies on information from legal counsel and others for her information. [46] Grady Lerat, on the other hand, was Chief of Cowessess from 2010 through 2013, and confirms the ongoing nature of the work Brabant provided including the files disputed by Ms. Tanner. He further confirms that Ms. Tanner, Edward Aisaican and Ernest Delorme were not part of Band Council during the 2011 to 2013 period nor were they directly involved in the files they say were not ongoing at the requisite time. The affidavit of Walter Pelletier is in essence repetition of the generality of the application; the amount of fees the Cowessess accounting system suggests seems very significant so Brabant should have to explain the past six years. The evidence put forward here is not sufficient to require the assessment sought. [47] There is prejudice to Brabant both as an individual and as lawyer. This is as a result of the request itself and it is not fair. It cannot be presumed that Brabant could effectively gather together the information on all of the matters he provided legal services in relation to so as to explain each item in an assessment as requested by Cowessess. (viii) Whether the accounts were paid and, if so, the circumstances of that payment (i.e. from trust, from settlement proceeds, by the client, etc.) [48] It appears that payment of the accounts which were paid were accomplished by cheque after bill was rendered as opposed to payment from trust or from settlement proceeds. There are accounts outstanding that have not been paid in full, as indicated, totaling $53,059.71. (ix) Any misrepresentation, fraud or dereliction of duty by the solicitor [49] As indicated by Klebuc J. in Isley, this type of allegation must be supported by full particulars. This is so even with the now less stringent fairness based standard referenced in Doig and Machula. While there are complaints by Cowessess about the amount of the fees charged, the threshold set by Klebuc J. and still, in essence, applicable given the content of the allegation, is lacking here. I do not find any properly supported allegations of misrepresentation, fraud or dereliction of duty by Brabant. There are, however, a number of affidavits from former Chiefs and Council members confirming the quality and effectiveness of Brabant’s legal services during the time they worked with him as Cowessess’ legal counsel. (x) Other Considerations [50] Mr. Phillips placed heavy reliance on Vo as creating additional reasons for requiring this assessment to be ordered. The distinctions between this situation and Vo, however, abound: Thao Vo could not speak English and required an interpreter for all communications with Mr. Phillips; there was no agreement on the hourly rate Mr. Phillips or his employees were going to charge; the representation was in essence for one family law matter. The severance of the relationship between Thao Vo and Mr. Phillips was attested to as being due to Mr. Phillips’ ongoing unwillingness to take instructions to settle the matter. [51] In relation to Phu Vo, Mr. Phillips was retained to appeal letter from the High Commission of Canada and bill of approximately $10,000 was rendered, thus it was essentially single file issue. In addition, only one bill was ever produced for Phu Vo, that being at the end of the relationship. Here we are dealing with multiple attendances, multiple files, multiple ongoing bills and an attempt to reach back six years. [52] In December 2014 Mr. Phillips requested invoices for the six year period from Brabant. However, few days earlier, Mr. Saganace advised Brabant his bills were going to be paid forthwith, albeit with 50% of the interest that was owed. This may be in part due to the uncertain state of affairs at the Cowessess Band level, but regardless, creates an obvious unfairness for Brabant. [53] In Salyne, Justice Smith indicated at para. 11 that fairness requires client to raise any concerns they have with the account within reasonable time. In Isley, Justice Klebuc indicated at para. 39 that the impact of an order such as this must take into account the impact on the solicitor. In Vo, Justice Ball indicated at para. 15 that concluding what is just requires balance between what is fair for the client and what is fair for the lawyer. [54] Here Cowessess’ request is not fair to Brabant. The negative impact would be out of all proportion to the evidence provided on which the request is made. While request on one file or single lawsuit might well be approached differently, here Cowessess seeks to assess six years of general counsel advice on wide spectrum of issues involving many different matters. To justify that kind of intrusion to sole practitioner in lengthy, extensive and ongoing relationship with sophisticated client, specific, clearly defined and reliable evidence is required. In the circumstances here, including the turmoil the Band is currently embroiled in, this is not an appropriate situation in which to order the assessment requested. It would not be fair nor in the interests of justice. The application is therefore dismissed. [55] Brabant is entitled to his costs in this matter which fix at $2,500.

HELD: The application was dismissed. The court held that the request for an assessment was not fair to the defendant and would not be in the interests of justice. The court reviewed the factors set out in Machula v. Kuse and found that the applicant had failed to provide the specific information required to direct an assessment of six years of legal services covering a multitude of issues on a substantial number of files. The court distinguished the applicant from the case of Vo v. Phillips Legal Profession Corp. because the defendant was not an unsophisticated client. The length of time was unusual, which would further support the need for clearly outlined reasons to justify going back six years. Further, the applicant had not made any complaints to the defendant even during the post-election period and had assured him that he would be paid. The defendant would be severely prejudiced by the assessment requested because of the time that it would take him from his practice to review six years of billings on hundreds of attendances. The applicant had not provided any properly supported allegations of misrepresentation, fraud or dereliction of duty by the defendant, whereas there was plenty of evidence that his legal services were effective and appreciated.

e_2015skqb412.txt

GOLDENBERG QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 478 Date: 2011 12 19 Docket: Q.B. CR. 897/2011 Judicial Centre: Estevan BETWEEN: HER MAJESTY THE QUEEN and PHILIP EDWARD MULLINS Counsel: Steven P. Dribnenki for the Crown Lori A. Dunford for the accused JUDGMENT ZARZECZNY J. December 19, 2011 INTRODUCTION [1] On December 13, 2011, the accused, Philip Edward Mullins was found guilty of three counts contained in an Amended Indictment dated December 12, 2011, charging him with the following offences: Count 1: That he, on or about the 25th day of August, 2010, at or near Estevan Saskatchewan, did unlawfully possess a controlled substance included in Schedule 1 to wit: cocaine (benzoylmethylecgonine) for the purpose of trafficking, contrary to section 5(3)(a) of the Controlled Drugs and Substances Act. Count 2: That he, on or about the 25th day of August, 2010, at or near Estevan Saskatchewan, did unlawfully possess a controlled substance included in Schedule I to wit: cannabis (marihuana) for the purpose of trafficking, contrary to section 5(3)(a) of the Controlled Drugs and Substances Act. Count 3: That he, on or about the 25th day of August, 2010, at or near Estevan Saskatchewan, did unlawfully have in his possession property (or proceeds of property), to wit: cash of a value exceeding $5,000.00 knowing that all (or part) of the property was obtained (or derived directly or indirectly) as a result of the commission in Canada of an offence punishable by indictment contrary to section 354 and 355 (a) of the Criminal Code. [2] A sentencing hearing was subsequently held December 19, 2011 after which the court reserved its sentencing judgment now delivered. CIRCUMSTANCES OF THE OFFENCE [3] The circumstances of the offences alleged, and to which the accused has now been found guilty, took place in the City of Estevan, Saskatchewan on August 25, 2010. On that date, as result of information received, members of the Estevan Police Force, having obtained search warrant, attended residence located at 19 Coronation Street in the Estevan Trailer Court. There they found seven individuals including the accused. The accused was found in bedroom at the far end of the house trailer alone and apparently either sleeping or lying on bed in this bedroom. His head was on or immediately beside black duffle bag which was ultimately found to contain 1,312.7 grams of marihuana and 29.9 grams of cocaine. Immediately beside the bed was red suitcase which was found to contain in excess of $27,000.00, cash consisting mostly of $20.00 bills wrapped up in three bundles. After his arrest, the accused was searched and another amount, slightly in excess of $4,000.00 cash, was found on his person. He was charged with the offences which he has presently been found guilty. number of the other individuals found in this residence also possessed drugs and were charged with various drug offences. [4] The defence admitted that the quantity of marihuana and cocaine would, if the accused was found to be in possession of them, exceed quantities for personal usage and would constitute drugs in possession for the purposes of trafficking. CIRCUMSTANCES OF THE OFFENDER [5] Mr. Mullins is 34 years of age. He is not married, has no children nor was he employed at or about the date of this offence. [6] His counsel advises that he has serious addiction to marihuana and cocaine. He began drug use in his late teens. [7] Mr. Mullins weighs approximately 400 pounds and he is very large individual. He attributes his inability to find or maintain gainful employment on his excessive weight. He has only grade 12 education and has never had “career”. He claims to be interested in acquiring job skills training and is particularly interested in heavy equipment operator’s course. His parent and sibling sister live in New Brunswick and his plans include returning to that region of Canada. POSITION OF THE PARTIES The Crown’s Position [8] The Crown filed sentencing brief and it sets out the Crown’s position on sentencing. To summarize, the Crown is seeking the following sentence: a) global (for all three charges) sentence of imprisonment of five years; b) forfeiture order pursuant to s.16(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 as am. (“CDSA”) and s.462.37(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the “Code”), of all items seized; c) fine in lieu of forfeiture pursuant to s. 462.37(3) of the Code for all cash used for legal fees; d) mandatory weapons prohibition pursuant to s. 109 of the Code; e) an order requiring Mr. Mullins to provide bodily substances for DNA analysis pursuant to s. 487.051(3) of the Code. [9] The Crown’s position was advanced upon and supported by number of this Court’s and Saskatchewan Court of Appeal’s sentencing decisions involving offences for possession for the purposes of trafficking in marihuana and harder drugs including cocaine. The Crown takes the position that the nature and quantity of the drugs found in Mr. Mullins’ possession for the purposes of trafficking constitute an aggravating factor. The court notes that among the six persons also found in this house trailer, number of them were between 15 and 17 years of age. [10] The Crown argues that the applicable purposes, principles and objectives of sentencing to be stressed in this case include denunciation of this accused’s unlawful conduct and deterrence to him and other persons from committing serious drug offences. (See R. v. Aube, 2009 SKCA 53 (CanLII); 324 Sask.R. 303 (esp. para. 19); R. v. Dubai, 2008 SKCA 49 (CanLII), 310 Sask.R. 85 (esp. para. 5)) [11] The Crown also refers to s. 10 of the CDSA providing as it does that in cases of sentencing for drug offences rehabilitation, treatment and an acknowledgement of harm done to victims and the community are all to be considered. Subsection 10(2) outlines circumstances which the court must take into consideration in such sentencings including, in the circumstances of this case, that the drugs in question were possessed for the purposes of trafficking and that the accused was previously convicted of designated substance offence. The court notes that while young persons were present in the house trailer at the time the accused was arrested, there is no evidence that the drugs which they possessed were received from the accused. Mr. Mullins does have serious prior conviction record for drug trafficking and conspiracy to do so as well as number of drug possession charges. The Accused’s Position [12] Counsel for the accused also submitted written brief respecting Mr. Mullins’ position on sentencing. She observes at para. 17: While Mr. Mullins record is an aggravating circumstance the facts as came out in evidence do not show sophisticated commercial enterprise that would warrant an extremely lengthy period of incarceration. At para. 18, the defence urges as follows: ... The defence respectfully submits that the sentence should be in the range of years to 30 months, with long period of probation to assist Mr. Mullins in overcoming his drug addiction which has placed him in the criminal justice system ... [14] The significant issue with respect to the sentencing of this case relates to Mr. Mullins’ pre-trial detention upon these charges. He has been in custody since he was arrested upon these offences August 25, 2010. He applied for and was denied bail and as of December 19, 2011, he had been in custody for 15 months and 24 days. [15] Defence counsel has filed an affidavit from Mr. Mullins relating to his personal circumstances and the nature of his pre-trial detention. On the basis of the information contained in that affidavit and her submissions based upon the interpretation and application of ss. 719(3) and 3.1 of the “Code”, she urges the court to give Mr. Mullins one and one-half times credit for the time he has served on remand awaiting trial. [16] Counsel for Mr. Mullins stresses his personal circumstances, including his drug addictions, the apparent support he has from his family members in New Brunswick and his expressed intention to acquire employment skills so that when released he can have better employment prospects. ANALYSIS The Sentencing Provisions of the Criminal Code [17] In considering the sentencing of Mr. Mullins, have considered the provisions of the Code and s. 10 of the CDSA setting out the fundamental purposes, objectives and principles of sentencing generally and those to be applied to sentencing in drug cases. [18] The Criminal Code of Canada, and in particular s. 718 of the Code, sets out the fundamental purposes of sentencing. These include maintaining respect for the law and the just, peaceful and safe society. The objectives of sentencing are also set out in this section of the Code and they include denunciation of unlawful conduct, deterrence of an offender or other persons from committing offences, separation of offenders from society when necessary, assisting in the rehabilitation of offenders and finally the promotion of sense of responsibility in offenders and an acknowledgement of the harm done to victims and to the community. [19] The fundamental principle of sentencing is set out by s.718.1 of the Code. sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [20] Section 718.2 of the Code mandates that sentencing court must take into consideration relevant aggravating or mitigating circumstances relating to the offence of the offender in considering whether or not sentence should be increased or reduced. This section advances the parity principle that similar sentences should be imposed on similar offenders for similar offences committed in similar circumstances. An offender should not be deprived of liberty if less restrictive sanctions are appropriate in the circumstances. All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders. [21] Finally, the court has considered, although it does not appear to be appropriate or applicable in this case, the provisions of s. 742.1 of the Code relating to sentences of imprisonment of less than two years and the option of community based sentencing. The court concludes, in the circumstances of this case, that it would not be appropriate to impose an overall sentence less than two years in the circumstances of this case or this offender. Aggravating Circumstances [22] The aggravating circumstances in this case include the fact that the amount of marihuana and cocaine found in the accused’s possession was admittedly for the purpose of trafficking. Cocaine is recognized as “hard drug”. It is generally recognized that it is addictive and that marihuana use can create serious dependancy. [23] Mr. Mullins, in the whole of the circumstances, cannot be considered “street level” drug possessor or trafficker. The amount of drugs which he was found to possess was not comparable to those cases that involved sophisticated drug distribution and trafficking organization dealing with the huge quantities found in van loads or bricks of cocaine. Nevertheless, the quantity Mr. Mullins was found to possess, when combined with the significant amount of cash (almost $30,000.00) which Mr. Mullins possessed, lead to no other conclusion than that he was wholesaler of the two drugs in question at least at the mid-range of the drug trafficking spectrum. [24] Nor is Mr. Mullins young man he is 34 years of age. Young persons were present in the trailer when he was arrested and that too, regard, as an aggravating circumstance. [25] Of very significant concern to and impact upon this Court in terms of sentencing is the fact that Mr. Mullins has previous drug related criminal record. This is noted as sentencing factor of particular importance in s. 10 of the CDSA. As the Crown points out in paras. and 46 of its brief, Mr. Mullins had nine prior drug convictions since 1999, two for trafficking in 2000 for which he received 12 month sentence of incarceration and in 2007, one trafficking and one conspiracy to traffic which resulted him receiving sentence of five years in the penitentiary. The court, of necessity, considered this to have significant impact upon the appropriate sentence to be imposed on Mr. Mullins for the current offences. Mitigating Circumstances [26] Simply put, there are few mitigating circumstances that the court can and should properly take into account in reaching its sentencing decision. As previously observed, Mr. Mullins is not entitled to the deference that can and perhaps should be paid to youthful offender facing his first encounter with the courts. When this offence was committed, he was in his 30's and he appears to have made very little productive contributions to society or to his own advancement. There is no evidence that he has dealt effectively or perhaps at all with his drug addictions or dependancies nor does his affidavit nor the written submissions of his counsel outline any programming that he has taken or intends to take to deal effectively with them. [27] He claims to have been discriminated against because of his size and over weight condition yet there is an absence of any evidence that an effort has been made to deal with his obesity, or that if it is result of metabolic condition he has, he has taken any steps to overcome or effectively deal with its impact on his working and social life. [28] He has no definitive plan to deal with any of these issues other than his stated intention to enhance his employment skills by taking heavy equipment operations course. Section 719 of the Criminal Code Pre-trial detention [29] come now to consider the impact and appropriate application of the provisions of s. 719(3) and (3.1) of the Code which state as follows: 719(3) In determining the sentence to be imposed on person convicted of an offence, court may take into account any time spent in custody by the person as result of the offence but the court shall limit any credit for that time to maximum of one day for each day spent in custody. (3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8). [30] The court received the evidence, by the affidavit of Mr. Mullins, that he has spent just short of 16 months on remand since being arrested on this offence. He deposes to the conditions he experienced while on remand. There is only one program available to remand prisoners and that is the Life Skills Program and he participated in that program. The rest of his time was, as is often referred to “dead time”. [31] He deposes that on average, prisoners on remand are in secure lock-up between 20 to 21 hours day. On seven occasions, the remand unit was on 24 hour lock-down ranging from one day to ten days. There is very little recreational opportunity. His pre-trial detention, which regard to be inordinately long, was in part the product of failed preliminary hearing date which, because of severe weather conditions, and minor accident, saw the prosecutor unable to reach Estevan. The pre-trial was re-scheduled with the resulting delays. Many of the other delays were either attributable to Mr. Mullins or jointly he and the Crown. (See para. 34 of the Crown’s Sentencing Brief). Nevertheless, Mr. Mullins could and should have been brought to trial sooner than he was. Failure to do so caused far longer period of pre-trial detention than was appropriate and this length exacerbates the negative circumstances this accused experienced while on remand. [32] I accept Mr. Mullins’ deposition that he was a compliant prisoner, had no disciplinary issues or problems while on remand and that he would have qualified, had he been in the regular prison population, for a one-third reduction in his sentence for good behaviour. [33] In the result, and for these reasons, conclude that the circumstances justify the maximum credit allowed pursuant to s.719(3.1) of the Code. I give Mr. Mullins credit of one and one-half days for each day he spent on remand to a total of 23 months, 21 days credit (see in this regard R. v. Johnson, 2011 ONCJ 77 (CanLII), [2011] O.J. No. 822 (Ont. Ct. Jt.). DECISION Sentencing Cases [34] In R. v. Aube (supra), Smith, J.A. observed at para. 19 This Court has repeatedly said that the range of sentencing for trafficking in cocaine is 18 months to four years ... [35] While not convicted of trafficking, Mr. Mullins was convicted of having in his possession quantities of cocaine and marihuana for the purposes of trafficking. [36] Both this Court and the Saskatchewan Court of Appeal have had numerous occasions to consider the sentencing of persons engaged in drug trafficking or possession of drugs for that purpose. The court accepts the range as identified by Smith J.A. in the Aube case. [37] Mr. Mullins was not, on this occasion, involved or engaged in sophisticated or organized drug transportation and trafficking organization. There is no evidence or suggestion advanced by the Crown that he was other than lone operator working for his own benefit. While his counsel argues that he is involved with the drug trade to support his own addictions, the amount of cash which the court concluded were proceeds of crime would suggest not only that that is the case but as well this is how Mr. Mullins has chosen to earn his living. [38] Prior charges, convictions and incarcerations have appeared to have little impact or effect in deterring him or in his rehabilitation. He appears to have become “professional drug dealer”. [39] Having taken the totality of his personal circumstances together with the circumstances of this offence into account, and having reviewed the cases and authorities respecting sentencing in cases of drug possession for the purposes of trafficking or trafficking as reviewed in both the defence and Crown briefs, I have concluded an appropriate sentence in this particular case is a sentence of imprisonment of 30 months. This sentence, when combined with the default provisions must impose pursuant to s. 462.37(4)(ii) of six months presents potential “global sentence” for Mr. Mullins of three years imprisonment. [40] The 30 month sentence I have imposed is before any credit is granted within the meaning of s. 719(3.3) of the Code. I grant a credit against that sentence for the time served by Mr. Mullins on remand at the rate of one and one-half days for each day spent in remand custody to a total of 23 months and 21 days. In the result, I impose a remaining sentence to be served by Mr. Mullins of 6 months, 9 days, the same to be served unless otherwise permitted at a provincial correctional centre in Saskatchewan. [41] In addition to the sentence of incarceration imposed upon Mr. Mullins, the court authorizes and directs the following further orders: 1) pursuant to s. 16(1) of the CDSA and s. 462.37(1) of the Criminal Code forfeiture of all items seized from Philip Edward Mullins incidental to his arrest August 25, 2010; 2) pursuant to s. 109 of the Criminal Code, Philip Edward Mullins in prohibited from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substances for life; 3) pursuant to s. 487.051(3) of the Criminal Code, Philip Edward Mullins is ordered to provide and the Crown is authorized to take from him the number of samples of bodily substances reasonably required for the purpose of forensic DNA analysis; 4) pursuant to s. 462.37(3) of the Criminal Code, Philip Edward Mullins is ordered to pay a fine in lieu of forfeiture in the sum of $16,325.98 to be paid within 60 days and, in default of payment, pursuant to s. 462.37(4)(ii), a term of imprisonment of six months consecutive to the term of imprisonment imposed by this judgment is ordered. [42] The order imposed pursuant to s. 487.051(3) is authorized because of Mr. Mullins’ serious prior conviction record and the dangerous nature of the offences with which he has been and is presently convicted including the potential for violence often associated with the drug trade. The court concludes that it is in the interest of justice that such an order be made. In respect of the s.462.37(3) order, the amount involved is $16,325.98 which was transferred to Mr. Mullins’ legal counsel at his request to pay his legal fees. These funds were part of the proceeds of crime found to be in his possession when he was arrested and of which he is being found guilty. J. T.C. ZARZECZNY

The accused was found guilty of possession of cocaine for the purpose of trafficking and possession of marijuana for the purpose of trafficking contrary to s. 5(3)(a) the Controlled Drugs and Substances Act, and having in his possession cash (almost $30,000) knowing it was obtained through the commission of an offence contrary to s. 354 and 355(a) of the Criminal Code. At issue was the accused's sentence. The Crown sought a global sentence of 5 years plus a forfeiture order of items seized, a fine in lieu of forfeiture for all cash used for legal fees, a mandatory weapons prohibition and sought bodily substances for DNA analysis. As the accused had been denied bail and had pre- trial detention of 15 months and 24 days, the defence sought one and one-half times credit for time served on remand.HELD: The accused had 9 prior drug convictions since 1999, two for trafficking in 2000 for which he received a 12 month sentence of incarceration and, in 2007, one trafficking and conspiracy to traffic which resulted in his receiving a 5 year penitentiary sentence. As the accused had been a compliant prisoner on remand, the Court granted him credit for 1.5 days for each day spent on remand for a total of 23 months and 21 days credit. The Court imposed a sentence of 30 months imprisonment, and ordered a DNA sample as well as a fine in lieu of forfeiture in the sum of $16,326 (being the sum transferred to the accused's legal counsel to pay his legal fees) to be paid within 60 days and, in default of payment, a term of imprisonment of 6 months consecutive to the term of imprisonment otherwise imposed.

c_2011skqb478.txt

THE COURT OF APPEAL FOR SASKATCHEWAN DENNIS BJARNE SORENSON and HER MAJESTY THE QUEEN CORAM: The Honourable Chief Justice Bayda The Honourable Mr. Justice Vancise The Honourable Mr. Justice Lane COUNSEL: D.J. Sorenson unrepresented D.L. Rayner for the Crown DISPOSITION: Appeal Heard: September, 1993 Appeal Decided: 17 January, 1994 Reasons: 17 January, 1994 On Appeal From: P.C., J.C. of Prince Albert Appeal File: 6004 Reasons by: The Honourable Mr. Justice Vancise In concurrence: The Honourable Chief Justice Bayda The Honourable Mr. Justice Lane VANCISE J.A. The appellant appeals the sentence imposed by the trial judgeafter a trial where he was found guilty of assault contrary to s.267(1)(b) of the Code. He was fined $1200, with surcharge of $120 and placed on probation for 12 months. The sole issue on the sentence appeal is whether the trial judge erred in not ordering an unconditional discharge in the circumstances of this essentially domestic altercation. The appellant and his spouse arrived at the Avenue Hotel parking lot in Prince Albert where they by chance encountered his spouse's former husband, John Watson. Watson had apparently made some threat to the appellant's spouse concerning their children. The appellant warned Watson to stay away from his spouse and the children and to stay off the Muskoday reserve. Watson apparently turned towards the appellant with his fists clenched and the appellant struck him. Watson fell and the appellant kicked him in the groin and walked away. Watson recovered and attempted to continue the fight but was struck again and then threatened by the appellant. The appellant is 38 years old and at the time of the offence wasemployed as a long distance trucker by Westcan Bulk Transport. He hadno criminal record. He had been employed by Westcan Bulk Transport for number of years and was considered good and reliable employee. Westcan is transporter of bulk cargo in the four western provinces and the western United States. He was dismissed immediately after his conviction because he could not gain entry to the United States. His employer advised him that because of the nature of their business and the uncertainty surrounding the appellant's ability to enter the United States as driver of one of their trucks, they had no choice but to terminate his employment. The appellant had been unable to obtain similar employment at the time of the appeal. The sole issue here is whether the trial judge erred in not ordering an absolute discharge in the circumstances of this offence. Section 736(1) governs the granting of discharges after an accused has been convicted of an offence. That section reads as follows: 736.[662.1] (1) Where an accused, other than corporation, pleads guilty to or is found guilty of an offence, other than an offence for which minimum punishment is prescribed by law or an offence punishable, in the proceedings commenced against him, by imprisonment for fourteen years or for life, the court before which he appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in probation order. Thus the issue here is whether it is in the best interest of the accused and not contrary to the public interest to order an absolute discharge. It is clear the appellant may appeal the finding of guilt and make the request to substitute discharge for the conviction and although such orders should be made sparingly, they should not be reserved exclusively for trivial or unintentional offences. See: R. v. Bram (1982), 30 C.R. (3d) 398 (Alta C.A.); R. v. Fallofield (1973), 22 C.R.N.S. 342 (B.C.C.A.). The appellant is, in our opinion, one of those persons in whose best interest it is to grant an absolute discharge. He is 38 years old and had never been involved with the criminal justice system at the time of this offence. He does not abuse drugs or alcohol. He was employed and had been continuously employed with the same employer for six years, he was and still is involved in stable family relationship and was supporting his spouse and her children. The offence, while not trivial matter, arose from domestic dispute surrounding certain actions and threats the victim had made towards the appellant's spouse and her children. That does not excuse the appellant's conduct but it is apparent that he is not person who normally resorts to violence and his conduct appears to be an aberration. In our opinion it would not be contrary to the public interest in this case to order an absolute discharge. major factor, but not the only factor, in this case is that criminal record will prevent the appellant from being re-employed by Westcan. Westcan has advised the Court that if the appellant were again able to cross the border and operate its equipment in the U.S., that his rehire status while not guaranteed would be "pretty fair". The policy of U.S. Immigration prohibiting persons with criminal records from entering the country and the procedure required to be followed to obtain permission to enter the U.S. makes it virtually impossible for the appellant or his employer to know with certainty whether he will be able to enter the U.S. as the driver of one of their trucks at any given time. In our opinion it is not contrary to the public interest to grant an absolute discharge in these circumstances. The appellant is not person requiring personal deterrence and rehabilitation through the use of correctional facilities or treatment centres is not factor. He is person of good character who made an error in judgment. The offence is not one that requires an element of general deterrence to deter others. There will therefore be an order setting aside the convictionand the determination of guilt and substituting therefore an absolutedischarge. If the fine and surcharge imposed have been paid, the sums so paid shall be remitted to the appellant. DATED at the City of Regina, in the Province of Saskatchewan, this 17th day of January, A.D. 1994. VANCISE J.A. concur BAYDA C.J.S. concur LANE J.A.

38 year old truck driver with no previous criminal record was found guilty of assault contrary to ss.267(1)(b) of the Code. He was fined $1200, with a surcharge of $120 and placed on probation for 12 months.An altercation took place after his spouse's former husband had threatened his spouse and her children. He was dismissed from his employment as a truck driver immediately after his conviction because he could not gain entry into the United States, because he now had a criminal record. HELD: Conviction set aside; absolute discharge granted.

6_1994canlii4677.txt

Docket No.: CAC 160371 Date: 20010227 NOVA SCOTIA COURT OF APPEAL [Cite as: R. v. Lawrence, 2001 NSCA 44] Flinn, Chipman and Cromwell, JJ.A. BETWEEN: DONNA CORA LAWRENCE and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT Counsel: Allan F. Nicholson and Patricia Fricker, for the appellant William Delaney, for the respondent Appeal Heard: October 4, 2000 Judgment Delivered: February 27, 2001 THE COURT: Appeal dismissed per reasons for judgment of Flinn, J.A.; Chipman and Cromwell, JJ.A. concurring. FLINN, J.A.: BACKGROUND [1] Following a trial in the Supreme Court, before Justice Simon MacDonald and a jury, the appellant was convicted of four offences, under the Criminal Code of Canada R.S.C. 1985, c. C-46, arising out of her operation of a motor vehicle. The appellant was convicted of criminal negligence causing death (s. 220); causing death in the operation of a motor vehicle while impaired by alcohol (s. 255(3)); criminal negligence causing bodily harm (s. 221) and causing bodily harm in the operation of motor vehicle while impaired by alcohol (s. 255(2)). [2] The appellant appeals her conviction, and raises numerous grounds of appeal. In none of these grounds of appeal does the appellant take the position that the jury’s verdict is unreasonable and cannot be supported by the evidence. Nevertheless, it would be helpful, before dealing with the appellant’s grounds of appeal, to provide background, and to set out in some detail the evidence which the jury heard in this case. [3] On May 28, 1997 the appellant and Barbara MacRae were driving their respective motor vehicles, in opposite directions, on Highway 105, the Trans-Canada Highway. At South Haven, Nova Scotia, few miles northeast of Baddeck, the appellant’s motor vehicle strayed into the opposite lane, facing oncoming traffic, and, particularly, the MacRae motor vehicle. The MacRae motor vehicle veered to the left, into the opposite lane, to avoid the appellant’s motor vehicle. Just as the MacRae motor vehicle made that maneuver, the appellant’s motor vehicle veered back into its own lane. The two vehicles collided, head-on. The only passenger in the MacRae vehicle (Barbara MacRae’s mother-in-law) was killed. Both the appellant, who was alone in her car, and Barbara MacRae were injured. Both testified that they remembered nothing of the circumstances of the collision. [4] The following summarizes the evidence which the jury heard at this trial. [5] Scott MacLean testified that on the day of the accident, between 3:00 and 3:15 in the afternoon he was driving from Sydney to Baddeck on Highway 105. He had just passed the turn off to Englishtown when he came upon motor vehicle that was parked across the yellow (centre) line making it necessary for him to come to complete stop. The female driver of the other vehicle backed her car up and Mr. MacLean was able to proceed on his way. He then noticed that the driver of this other vehicle followed behind him for “a couple of kilometers.” He saw the vehicle weave from side to side within its own driving lane. Just prior to the turn off to St. Ann’s, Mr. MacLean saw the other driver pull off to the side of the road. Mr. MacLean went on to Baddeck, completed his business there, and proceeded back towards Sydney. On his return to Sydney, as he approached the area of South Haven, he came upon the accident in question. He identified one of the cars involved in the accident as the appellant’s car, the same car that he had stopped to avoid near the Englishtown turn off, green car with blonde haired woman as the driver. Mr. MacLean testified that when he first noticed the appellant’s car, which had been blocking the highway, it appeared to him as though she was reading map, and he thought that she could have been lost. [6] Frank MacRae also testified. His mother, Marjorie MacRae, was the passenger in Barbara MacRae’s motor vehicle. Barbara MacRae is Frank MacRae’s sister-in-law. Mr. MacRae had been visiting in-laws near Baddeck. He left Baddeck some time between 2:30 and 2:45 p.m. on the day of the accident and was travelling to North River. En route, and by coincidence, he drove up behind Barbara MacRae’s motor vehicle. On the right-hand side of Highway 105, at the village of Glen Tosh, Barbara MacRae pulled her vehicle off the road and into United Church property where her husband and father-in-law were working. Frank MacRae followed. There was brief discussion, and then the motor vehicles proceeded on their way, with Mr. MacRae driving his van immediately behind Barbara MacRae’s motor vehicle. He testified as to what he, then, observed, as follows: Q. What type of speeds would you have been traveling at? A. From the church, when we left the church. Q. Yes or as you got along little farther. A. We were doing roughly between 80 and 90 kilometers. We were getting close to our turn off so there was no need of us going that fast. Q. What did you notice take place then? A. Well just before the turn-off noticed the car coming into Barbie’s lane. Q. And how would that compare to your lane? What lane were you in? A. was in Barbie’s lane too. Q. Okay so you noticed car coming into the lane, how far into the lane? A. When first noticed it could see the driver’s side wheel coming over the yellow line and just kept on coming. Q. How far over the yellow line did the car get? A. Pretty well the width of the car. She came right across. Q. Did you notice anything about the driver of that car at that time? A. noticed the driver was leaning towards the driver’s door. Q. Anything else? A. No. And further: Q. After you saw this and you saw the vehicle over there, what took place next? A. then seek (sic) Barbie swerve over to the opposite lane and when she done that again noticed the other driver done the exact same thing and they collided. Q. How would you describe the way they came together the two vehicles came together. A. It looked just like when they struck. Q. You’re indicated it looked like when they struck? A. Yes. Q. What took place then? A. Barbie’s car spun right around and was facing back towards Baddeck. Q. And what happened to the other car? A. The other car was cross-ways in the road. 7) Mr. MacRae stopped his van and checked the occupants of his sister-in-law’s car. He could not open either of the front doors, and he determined that there was nothing that he could do to help. He testified that he then heard woman calling for help and went to the other motor vehicle where the appellant was in the driver’s seat of her car. He testified that he did not see any cuts or blood or any other apparent injuries to the appellant. [7] It was suggested to Mr. MacRae, in cross-examination, that he did not smell any alcohol emanating from the appellant at that time, to which he answered “That was the last thing on my mind.” [8] Barbara MacRae, the driver of the other motor vehicle involved in the collision testified that on the date of the accident she had been at the Baddeck Hospital visiting sick relative. Her mother-in-law had been there as well, and Barbara MacRae had agreed to drive her mother-in-law home. She testified that, after leaving Baddeck, they stopped at the United Church in Glen Tosh on the Trans-Canada Highway where her husband and father-in-law were working; and, after short period, they proceeded back onto the highway, with Marjorie MacRae occupying the front passenger seat. Barbara MacRae testified that she remembers nothing from that point until she was in an ambulance after the collision. She spent some time in hospital in May and June of 1997 and walked with the assistance of cane as result of injuries which she received in this accident. [9] Constable Daniel Borke testified to being on duty as an R.C.M.P. officer in the Baddeck detachment on May 28, 1997. He was on duty when the call came in concerning the accident and was the first officer to arrive at the scene. He received the telephone call at 12 minutes after three on the afternoon of May 28, 1997, and arrived at the scene approximately five minutes later. The ambulance attendant was already there. He testified that he noticed woman sitting in the back seat of the green car with the ambulance attendant talking to her. He noticed that there was road map, of Nova Scotia, spread open inside the car. He testified that his main responsibility was to secure the scene of the accident and direct traffic. [10] Sergeant Austin MacKenzie, member of the R.C.M.P. stationed in Baddeck, attended at the scene of the accident at approximately 3:20 p.m. on that day. He took number of photographs of the accident scene which were exhibits at the trial. Sergeant MacKenzie testified that he saw the appellant in the ambulance. He was three to four feet away from her, and standing outside the ambulance, when he detected fairly strong smell of alcoholic liquor from her. He also indicated that her eyes were bloodshot and glassy and her movements were “that of an impaired person to my eyes.” He checked the appellant’s vehicle, and noticed the smell of alcohol coming from the vehicle. He noticed open maps in the vehicle. He seized thermos from the vehicle noticing that there was small amount of liquid in it from which he could detect the smell of liquor. He acknowledged under cross-examination that there was nothing in the thermos to be analyzed. [11] Edmond Osborne Burke, an auxiliary member of the R.C.M.P., testified that he came upon the scene of the accident in question. He recognized the appellant as the lone occupant of the Chrysler motor vehicle. He asked the appellant if she was okay and she replied that she was. He observed that the appellant appeared to be disoriented and confused, her eyes were bloodshot and she was unsteady and weaving; however he indicated that he did not notice any smell of alcoholic beverage while speaking to the appellant; although he explained that he did not have close contact with her and that during most of the time he was near her, he was outside the vehicle. He was not face to face with the appellant. [12] Shane MacFarlane testified that he came upon the scene of the accident. He approached the Chrysler vehicle and noticed that both air bags had been exploded. He spoke to the woman in the Chrysler vehicle. He noticed that her speech was slurred and when he bent over her he detected smell of alcohol. She also appeared disoriented. [13] Dr. Roland Genge was qualified to give opinion evidence in the field of general medicine. He testified that he was called to the Baddeck Hospital after the accident had occurred. He testified that he first encountered the appellant as she was standing in corridor of the hospital in Baddeck, and indicated: The patient was eh, standing in the corridor and walking in the corridor of the hospital when arrived accompanied by an R.C.M.P. Officer. She did not appear to have had any serious injuries. She was walking, in my estimation, with stagger, she smelled of alcohol, questioned the patient as to any complaints that she had and it was indicated to me that she complained of soreness in her right foot only. Subsequent examination, in the examination room, showed that her vital signs were normal, her color was normal, there was no visible head injury or injury that could ascertain by feeling her head. Her neck was supple indicating there was probably no injury to the neck. [14] Dr. Genge concluded that the appellant was intoxicated. [15] Duncan MacLean, an ambulance attendant, arrived at the scene of the accident. He went, first, to the Chrysler vehicle and examined woman who was sitting in the rear seat. While he noticed no obvious injuries, he immediately detected smell of alcohol on her breath and noticed that she appeared to be slightly disoriented. [16] Ronald Bonnar testified that he came upon the scene of the accident as he was driving westbound on the Trans-Canada Highway. He went to the Chrysler motor vehicle and checked on woman who was in the back seat of that vehicle. He testified that she was looking for some gum in her purse, that she seemed quite upset and concerned about the people in the other vehicle. He testified that he did not detect any odour of alcohol during the time that he was with the woman. He agreed that statement which he subsequently gave to the police fairly summarized the woman’s account of the accident. The statement indicated: she said that she had bent down to get something, when she looked up she had drifted over the line and onto their side of the road, then she said she pulled the wheel back, she pulled the wheel back to get back onto her side of the road and doesn’t recall anything after that. [17] Travis MacNeil is paramedic. On arrival at the scene he went to the Chrysler motor vehicle to speak to the appellant. The appellant declined Mr. MacNeil’s suggestion that he put collar on her neck and did not want him to take her blood pressure. She did not want to get on stretcher to go to the ambulance, yet she complained of pain in her right foot. Initially, Mr. MacNeil did not detect the smell of alcoholic beverage from the appellant but eventually did so. He took the appellant by ambulance to the Baddeck Hospital and turned her over to Lynn Dunlop, nurse. [18] Lynn Dunlop is registered nurse who lived in Baddeck. She testified that she first dealt with the appellant in an outpatient room at the Baddeck Hospital. She testified that the appellant was staggering and did not want to sit down. Ms. Dunlop detected smell of alcohol from the appellant. She concluded that the appellant was intoxicated. [19] Janet MacCuspic is also registered nurse employed at the Baddeck Hospital who saw the appellant in corridor in the hospital. She noticed some unsteadiness in the appellant’s manner of walking; however, she did not smell an odour of alcohol from the appellant, but indicated that she was no closer than five to six feet from the appellant and that she had poor sense of smell. [20] Sally MacDonald, licensed practical nurse, working at the Baddeck Hospital testified that she saw the appellant shortly before 4:00 o’clock on the afternoon in question. She helped the appellant walk down corridor to washroom. She noticed that the appellant was staggering and she smelled alcohol. She concluded that the appellant was intoxicated. On cross-examination she admitted that in her statement to the police she said “I thought could smell alcohol from her breath” and, as result, acknowledged that this implied some doubt as to whether she did in fact smell alcohol. [21] Patricia Nicholson was interim director of nursing at the Baddeck Hospital on the day in question. She testified that she recalled seeing the appellant arrive at the hospital that afternoon. She testified that she noticed flushed appearance, glassy eyes, and strong smell of alcohol. She felt that the appellant was intoxicated. [22] Fred Lewis, licensed mechanic, gave opinion evidence on the condition of the two vehicles. He testified that he could find no mechanical defect in either car that could have caused or contributed to the accident. [23] Constable Michael Towle, member of the R.C.M.P. stationed in Baddeck, testified as to photographs which he took of the accident scene which were exhibits at the trial. Having attended at the scene at the time of the accident he testified that the weather was clear and mild and the road was dry. The accident scene was between 4/10 and 5/10 of kilometer west of the St. Ann’s turn off from Highway 105. Constable Towle testified that he went to the ambulance where he noted the appellant was trying to get out of seat in the ambulance while the ambulance attendant was asking her to remain seated. The appellant ignored the ambulance attendant and continued to try to get out of the seat, ending up on the floor of the ambulance. The appellant got out of the ambulance at which time Constable Towle noticed that she was having co-ordination problems, she had glassy eyes, and she was talking about having to get to the Gaelic College. Constable Towle noticed that the appellant’s speech was slurred and he detected strong smell of alcoholic beverage on her breath. Constable Towle formed the opinion that the appellant’s ability to operate motor vehicle was impaired by alcohol. He testified that he advised the appellant that she was under arrest for the impaired operation of motor vehicle. Shortly thereafter the appellant was taken to the Baddeck Hospital by ambulance and Constable Towle accompanied her. Upon leaving the ambulance Constable Towle took possession of the appellant’s purse. [24] At the hospital, Constable Towle noticed the appellant stagger as she proceeded down hallway and he detected strong odour of alcoholic beverage from her breath. [25] At approximately 4:16 p.m. on May 28, 1997, Dr. Genge informed Constable Towle that there was no medical reason to keep the appellant at the hospital. Constable Towle took the appellant to the Baddeck detachment of the R.C.M.P. At the detachment, Constable Towle testified that the appellant asked him for some eye drops from her purse. Constable Towle looked in her purse and found Visine, liquid mouth drops and cranberry juice bottle 1/4 full of substance he believed to be mouth wash. He did not find the particular eye drops that the appellant requested. [26] At 5:12 p.m. on the day in question the appellant was placed in the cells at the detachment. At approximately 6:00 o’clock that afternoon Constable Towle learned that there had been fatality as result of the accident and he was aware that the appellant’s husband was on his way to the detachment. Shortly thereafter, the appellant’s husband arrived and in her husband’s presence, Constable Towle informed the appellant that there had been fatality. The appellant was released at 8:55 p.m. that evening. [27] Corporal Almey gave opinion evidence as collision analyst. He took photographs, made measurements and later produced plan of the collision site. Constable Almey concluded that prior to the accident the Chrysler vehicle was travelling westbound in the eastbound lane and that the Ford Tempo vehicle was travelling eastbound in the eastbound lane and that both vehicles turned so as to collide in the westbound lane. [28] Dr. Bernard MacLean testified on behalf of the defence, having been qualified as general medical practitioner. He was not the appellant’s family doctor but on May 31, 1997, three days after the accident, he examined the appellant and noticed bruise on her foot. X-rays confirmed that the appellant’s foot was fractured in two places and that the nature of the fractures would have made walking difficult. The appellant reported to Dr. MacLean some retrograde amnesia. Dr. MacLean also detected positive neurological sign consistent with some kind of central nervous system injury, in layman’s terms, concussion. Dr. MacLean also testified that the appellant did not complain of nor did she display any signs of headaches, dizziness, vomiting or disorientation all of which are signs that he would look for in person who had received head injury. [29] Allison Tupper is professional engineer who was qualified to give opinion evidence with respect to accident reconstruction. He also attended at the scene, took measurements and photographs. Mr. Tupper concluded: As result of review, consideration and analysis have reached the opinion that it can be said with the highest degree of probability that; 1, collision occurred at or near the center of the westbound lane between the westbound Chrysler Sebring and the eastbound Ford Tempo. At material times preceding the collision, Ms. Lawrence had been driving her westbound car at speed of about 88 kilometers per hour while in the wrong or eastbound lane. When about 75 feet away from the eventual point of impact, Ms. Lawrence started to steer to her right and bring her car back into its proper lane. Meanwhile, Ms. MacRae was driving her eastbound car in the eastbound lane at speed of about 82 kilometers per hour and when about 50 feet away from the eventual point of impact she started to steer to her left in an apparent attempt to avoid collision with the oncoming car, just as that car moved back into its proper lane. No. 7, the two cars collided front to front when separated at an angle of about 35 degrees. [30] Mr. Tupper further concluded that the appellant applied her brakes immediately prior to the collision since there was evidence of braking, 16 feet prior to the impact with the other vehicle. [31] Ronald Lawrence, the appellant’s husband, testified that he woke at 5:30 a.m. on the morning of May 28, 1997 and found his wife, the appellant, working at her computer. Later that morning, at around 10:00 a.m., he noticed that she was still working on the computer. He testified that his wife continued working until approximately 12:30 p.m. when she left to go to the Gaelic College at St. Ann’s. He noticed nothing unusual about her appearance. [32] When he learned of the accident he travelled to Baddeck and met Constable Towle at the R.C.M.P. detachment. He testified that his wife did not seem to be impaired, to him, and when Constable Towle told him that his wife was in shock, he attributed her very quiet mood to that shock. [33] The appellant testified that on May 28, 1997 in connection with her duties as an employee of the Nova Scotia Government, she had speaking engagement at the Gaelic College. She had intended to be there by 3:30 p.m. on May 28, 1997. She testified that she had never been to St. Ann’s Gaelic College before and that she had never driven on that portion of Highway 105. She testified that she left her home in Harvre Boucher, Antigonish County, at 12:30 p.m. on the day in question and stopped at her office to pick up some materials. She then went to Baddeck, and went on from there in an attempt to find the Gaelic College. [34] When she was first asked about the last thing she recalled before the accident she replied: think leaving the office. had no memory of the accident or even the day of the accident until several weeks later. And in my mind now, can see passing Baddeck, but don’t know if that’s something am remembering or something that am assuming. know was at the office and picked up the slides, that is the last thing can say really know for sure. 8) The appellant went on to testify that she was “absolutely positive that remember being very frustrated that had missed where was supposed to be, and know was reading map.” She did not remember being stopped crossways on the road, nor did she remember the witness Mr. MacLean at all. She did remember seeing Osborne Burke’s face and remembered being in the ambulance. She also recalled being brought into the Baddeck Hospital and seeing Dr. Genge. 9) She identified the thermos that had been seized from her car and explained that she routinely used it to carry juice in the car. She said she did not have juice in the thermos on the day of the accident. 10) She testified she had not been drinking alcohol at all on the day of the accident. She testified that she was not aware that there were breath drops in her bag. With respect to the mouthwash, she testified that the Ocean Spray bottle found in her car contained mouthwash. The appellant was asked if she had any specific recollection of using mouthwash on the date of the accident. She testified: A. Well, as my normal routine would have used it before left home. Brushed my teeth and used mouth wash. After that don’t have any idea. 11) On cross-examination the appellant was shown photograph in which was depicted sign for the Gaelic College. When it was suggested to her that this was fairly conspicuous sign, she indicated: didn’t see it. did not see that sign on the date in question and it wasn’t the sign that was looking for. wasn’t looking for road sign, was looking for college sign, and don’t know when that picture was taken either. 12) Following submissions of counsel and the trial judge’s charge to the jury, the jury returned verdicts of guilty on each of the four counts in the indictment. APPELLANT’S GROUNDS OF APPEAL 13) The appellant raises 12 grounds of appeal which will deal with in the order in which counsel for the appellant put them in his submissions, both written and oral. 14) 1st Ground of Appeal That the learned trial judge erred in law in refusing to grant stay of all charges even though he found that the appellant’s right to counsel under s. 10(b) of the Charter had been violated by Officer Towle when he failed to advise the appellant of the full extent of her legal jeopardy. The trial judge further erred in law by making inconsistent findings concerning the impact of the Charter breach upon the refusal charge in his attempt to fashion remedy. 15) Prior to the commencement of the trial, the charges against the appellant included charge of refusing breathalyzer demand. Counsel for the appellant brought an application to have all charges against the appellant stayed on the basis that her right to retain and instruct counsel without delay, pursuant to s. 10(b) of Canadian Charter of Rights and Freedoms, had been violated. The only evidence heard on this application was that of Constable Towle of the R.C.M.P. 16) Constable Towle testified that on May 28, 1997, at 4:16 p.m., he read breathalyzer demand to the appellant. He indicated: asked her if she understood the demand, she indicated she did, and subsequently read her her rights to counsel and asked her if she understood then and eh, explained them to her because she gave indications she didn’t quite understand them and she wished to talk to counsel. 17) Constable Towle took the appellant to an interview room in the R.C.M.P. detachment in Baddeck, opened telephone book to the yellow pages for lawyers and left the appellant in the room with telephone and the telephone book. After few minutes, Constable Towle knocked on the door and asked if the appellant needed assistance. The appellant indicated that she wished to call lawyer in Port Hawkesbury, Mr. Wayne MacMillan. Constable Towle located Mr. MacMillan’s telephone number, underlined it, and left the appellant to make her phone call. short time later, the appellant opened the door to the interview room and asked Constable Towle to come in. She indicated that her counsel wished to speak to him. Constable Towle had conversation with Mr. MacMillan in which he told him that it was his belief that the appellant’s ability to drive motor vehicle was impaired by alcohol at the time of the accident and that there were serious injuries which resulted from the accident, with the possibility of fatality. Constable Towle asked Mr. MacMillan if he was going to tell the appellant that there was possibility of fatality and Mr. MacMillan’s reply was, “I don’t know if that’s good idea.” This conversation occurred at 4:43 p.m. and lasted for two to three minutes. Constable Towle again left the interview room and the appellant resumed her telephone conversation with Mr. MacMillan. 18) At 5:11 p.m. Constable Towle checked on the appellant and asked her if she was almost finished conferring with counsel and she indicated that she was. At 5:12 p.m. Constable Towle entered the interview room and asked the appellant if she was going to comply with the breathalyzer demand. The appellant asked Constable Towle what her options were. He replied that she could take the test, pass or fail, or she could refuse the test at which time she would be charged with the offence of refusal. Constable Towle then asked her again if she was going to comply with the demand and her response was, “I guess not.” Constable Towle’s evidence continued: At that point informed her by saying that that would be considered refusal and did she understand that by refusing she would be charged with the offence of refusal. She didn’t quite comprehend that, explained it to her, she understood it, at which point she asked if there were any other charges pending and eh....yeah any other charges pending. 19) On cross-examination, Constable Towle was asked the following question and gave the following answer. Q. Based on the evidence, what if anything did you conclude as to whether or not Mr. MacMillan had explained to her there was strong possibility of fatality? A. The way she framed the question to me was that he had advised her that there were other charges that could be laid because of the injuries, because had informed him that there were serious injuries. 48) Constable Towle indicated that he could not tell her what charges were pending until she decided whether or not she was going to take the test. 49) The appellant again asked if there were other charges and Constable Towle indicated that there was strong possibility of other charges as there were serious injuries to the people in the other vehicle. Constable Towle again asked the appellant if she was going to comply with the breathalyzer demand and she replied, “no am not” at 5:17 p.m. 50) Constable Towle then advised the appellant that she would be charged with the offence of refusing the breathalyzer. Constable Towle did not release the appellant on an appearance notice at that time because, although he knew there were serious injuries to people in the other vehicle, he did not know the extent of these injuries. Also, the appellant did not have transportation and Constable Towle knew that her husband was on his way to the R.C.M.P. detachment in Baddeck. 51) At approximately 5:40 to 5:45 p.m., Constable Towle learned that there had been fatality as result of the accident. At approximately 5:50 to 5:55 p.m., the appellant’s husband arrived at the R.C.M.P. detachment. 52) Constable Towle indicated: spoke to Mr. Lawrence, advised him of the situation at hand, advised him that had just recently learned of death in the accident and that his wife had not been informed of that yet, wanted him aware of that so when brought her down and told her that, that he would be able to comfort her and assist her. 53) Constable Towle then released the appellant from the cells, and advised her, in her husband’s presence, that there had been death as result of the accident and that there were going to be further charges. He advised her that he did not know of all the charges at that time due to his lack of knowledge of the condition of the driver of the other vehicle but he told her that there would be charges of refusing the breathalyzer, impaired driving causing death and criminal negligence causing death. The appellant was released from custody at approximately 7:00 p.m. 54) On the basis of these facts, counsel for the appellant requested a finding that the appellant’s s. 10 Charter rights were violated because she was not fully apprised of the extent of her jeopardy, with a corresponding right to consult counsel with respect to that jeopardy, before having to respond to a breathalyzer demand. He requested the trial judge to stay the refusal charge, and all other charges as well. [55] The ruling of the trial judge is somewhat ambiguous. In the course of that ruling he said the following: For purposes of the Charter Application, am satisfied the officer had the reasonable and probable grounds to make the demand and the demand was properly made as requested under the section. [56] He then said: Constable Towle had duty to communicate to Ms. Lawrence her right to counsel. In order for Ms. Lawrence to properly communicate with her counsel she ought to have known the extent of her jeopardy. am also satisfied there is an onus on the police to take steps to make sure Ms. Lawrence understands her jeopardy fully when she deals with her right to counsel. [57] The trial judge concluded: .. conclude that Ms. Lawrence’s s. 10(b) rights were violated. She did not have true appreciation of the consequences of giving up her protected charter rights. [58] With respect to remedy, the trial judge said that although he found the appellant’s s. 10(b) Charter rights to have been violated, he found that this was not one of those clearest of cases that warranted stay of all charges. [59] The trial judge then said the following: am satisfied, however, that the adverse inference ought not to be allowed to be used and argued by the Crown on this case on the other charges. say other charges because am satisfied that the refusal test was properly done, properly responded to, she had counsel for that, and differentiate that charge from the other charges with all due respect to Mr. Nicholson’s position. It is the adverse inference which arises from the refusal that is the only evidence that was elicited that would be of great benefit to the Crown in this case. [60] The trial judge ruled that the Crown would not receive the benefit of any adverse inference that might arise from the appellant’s refusal to take the breathalyzer test. At subsequent hearing, prior to the trial, the trial judge ordered that the refusal charge be severed from the other charges which are the subject of this trial. [61] While the ruling of the trial judge is ambiguous, when it is looked at in its entirety the trial judge appears to be saying that the appellant’s s. 10(b) Charter rights were violated because she was not fully apprised of the extent of her jeopardy, and permitted to consult with counsel with respect to that, before having to respond to breathalyzer demand. [62] In view of my conclusion with respect to this ground of appeal, it is not necessary for me to decide if the trial judge was correct in concluding that the appellant’s s. 10(b) Charter rights were violated. [63] Counsel for the appellant, on this appeal, is contending that the trial judge should have stayed all of the charges against the appellant; namely, the charge for refusing the breathalyzer demand, and the charges of criminal negligence and impaired driving as well. [64] In my opinion there is no merit to this position. [65] Firstly, this appeal is not the proper forum for the appellant to argue that the trial judge should have stayed the charge of refusing the breathalyzer demand. The appellant was not tried on that charge. [66] Secondly, accepting, without deciding, that the appellant’s s. 10(b) Charter rights were breached (because she was not fully apprised of the extent of her jeopardy, and permitted to consult counsel with respect to that, prior to having to respond to the breathalyzer demand) such breach had no effect on the charges of impaired driving and criminal negligence. The jury could not, and did not, hear any evidence concerning the breathalyzer demand or the refusal of the appellant to comply with that demand. Therefore, the only evidence from the appellant, which arose out of the circumstances involving the breach of her s. 10(b) Charter rights, was not heard by the jury. [67] Counsel for the appellant contends that if the appellant had been properly advised of the extent of her jeopardy, and had been able to consult counsel with respect to that, she might have taken the breathalyzer test and she might have passed the test. Had she done so, that would have countered all of the Crown’s evidence of the indicia of impairment which supported the charges of negligence and impaired driving. For this reason, counsel contends, the charges of criminal negligence and impaired driving should have been stayed as well. There was no evidence before the trial judge, on the voir dire, from which such inferences as counsel for the appellant suggests, could reasonably be drawn. [68] Thirdly, the trial judge refused to stay all of the charges against the appellant because he found “that this is not one of those clearest of cases” warranting stay. That is the proper test for granting stay of proceedings. Further, stay of proceedings is discretionary remedy, and appellate interference with the exercise of that discretion is not warranted unless the trial judge misdirects himself, or his decision is so clearly wrong as to amount to an injustice (see Canada, Minister of Citizenship and Immigration v. Tobiass et al., 1997 CanLII 322 (SCC), [1997] S.C.R. 391. It has not been demonstrated on this appeal that there is any basis for this court to interfere with the decision of the trial judge to refuse to stay these charges. [69] 2nd Ground of Appeal That the learned trial judge erred in law in making the following conclusions in his rulings concerning the lost evidence, i.e., the mouthwash suspected by Officer Towle of containing alcohol. A. That Constable Towle’s explanation for the loss of the mouthwash seized from the appellant’s purse was satisfactory in that he, Constable Towle, was satisfied that the mouthwash was of no importance once the refusal was entered; B. That the level of relevance of the missing evidence fell short of establishing serious impairment of the right to make full answer and defence even though the allegation of alcohol-induced impairment, evidenced primarily by the alleged smell of alcohol on the appellant’s breath, was key to the prosecution of all the charges, fact verified by the Crown Attorney in his closing address; C. That the learned trial judge, in revisiting the issue of the lost evidence at the commencement of the trial, simply reiterated his earlier ruling without taking into consideration the interim developments occasioned by the successful defence motion to sever the refusal charge from the remaining four counts in the indictment which dealt with impairment and relied on the smell of alcohol as proof of alleged impairment; D. That in both the initial and the subsequent ruling by the learned trial judge, he failed to consider the impairment-related charges in concluding that there was no abuse of process arising from the negligent handling and subsequent loss of the evidence. [70] It is necessary to refer to some further background to put this ground of appeal in perspective. [71] Counsel for the appellant also brought an application seeking stay of proceedings on all charges on the basis of breach of her rights under the Charter due to the loss of evidence by the R.C.M.P. Counsel claimed that the appellant’s rights to full answer and defence had been compromised by the fact that this evidence had been lost. The appellant did not call evidence on this application. The evidence was, principally, through Constable Towle. [72] Constable Towle indicated that while the appellant was attempting to locate counsel, she asked Constable Towle if he would look in her bag for her eye drops. He did so and while looking in her bag, noticed an Ocean Spray bottle, 1/4 full of blue substance which he took to be mouthwash from its smell. Constable Towle seized that bottle, placed it in his personal locker and the following day logged it into temporary exhibit locker. [73] Constable Towle indicated that while he retained the above bottle, after the appellant’s refusal to take breathalyzer test, he no longer considered it of great significance. [74] By agreement, the evidence of Constable MacDonald was placed before the court by the Crown Attorney in the following manner: the officer indicates that he received the exhibit, 475 or 473 milliliter bottle of Ocean Spray approximately one quarter full of liquid, believed to be mouthwash and one metal container thermos and he received those from Constable Towle, Constable Towle put them in temporary exhibit locker and from there, Constable MacDonald took them and put them in the main exhibit locker and when he went to retrieve them the thermos was there but the bottle containing the mouth, the substance believed to be mouthwash wasn’t. [75] The bottle of mouthwash was never found. [76] The trial judge ruled that Constable Towle’s conduct in this matter did not amount to an abuse of process. The trial judge also found that the loss of this evidence did not cause a breach of the appellant’s right to make full answer and defence under s. 7 of the Charter. The trial judge said: reject the Defence Counsel’s contention that the conduct of the Crown, and in particular Constable Towle, the R.C.M.P. amounted to an abuse of process. am not satisfied this was done for any improper motive to be attributed to the Crown, R.C.M.P. and in particular Constable Towle. Although as say, it was probably through negligence the mouthwash was lost. am satisfied the mouthwash was lost in circumstances that did not amount to an abuse of process. Mr. Nicholson argued on behalf of the accused his right to make full answer in defence was prejudiced by the loss of the mouthwash. He said he would have been able to have it analyzed and be able to use the amount of alcohol contained in the mouthwash to justify the smell of alcohol on Ms. Lawrence’s breath. This of course was the first sign to Constable Towle observed that she had been drinking. There was no evidence heard at the Voir Dire about Ms. Lawrence drinking any of the mouthwash that is the subject matter of the missing item. As Mr. Nicholson pointed out, there are numerous witnesses who said they didn’t smell alcohol on her breath. There are other witnesses that say they did. As well, am satisfied that Mr. Nicholson through Constable Towle can bring out the matter of the mouthwash and the fact that it contains alcohol and the smell. The Crown as much conceded this. The only difficulty seems to be what percentage of alcohol was in the particular mouthwash in question. When you consider the type of jar, cranberry juice jar, the amount of mouthwash remaining, it is questionable suggest as to just how much weight this would have with jury. am satisfied that the accused can overcome any obstacles such as this through cross examination of the witnesses called on behalf of the Crown. am not satisfied that the stay as requested by the accused is proper in this particular matter. In fact, even if were to find there was breach of the accused’s charter of rights, think quite clearly that to grant stay in the serious charges involving death and bodily injuries, based on the allegations of the amount of the missing mouthwash as alleged here would in fact bring the administration of justice into dispute. In conclusion, although the mouthwash could be helpful to the defence when analyzing their cross examination of witnesses, find the level of relevance, while it might be sufficient to meet the test for disclosure as set out in Stinchcombe, it falls far short of establishing serious impairment of the right to make full answer and defence by the accused. [77] Counsel for the defence renewed this application at later time during the proceeding and the trial judge rejected that application for substantially the same reasons. [78] The principles which are applicable in assessing whether lost evidence results in breach of one’s s. Charter rights are set out by Justice Roscoe of this court in R. v. B.(F.C.) (2000), 2000 NSCA 35 (CanLII), 182 N.S.R. (2d) 215. 79) In my opinion, in submitting that the lost mouthwash affected the ability of the appellant to make full answer and defence, counsel for the appellant is overstating the significance of the mouthwash to this trial in the extreme. The mouthwash was not pertinent to the defence. The subject of mouthwash was not even raised by defence counsel, initially, in his direct examination of the appellant. Following recess, at the conclusion of the direct examination of the appellant, counsel for the appellant requested permission of the trial judge to ask question which he had neglected to ask. He then asked the appellant series of questions concerning mouthwash. The appellant could not remember if she had used mouthwash on the day of the accident. She could only testify as to her usual routine; namely, to have brushed her teeth and used mouthwash before she left home. No other evidence was called by the defence concerning mouthwash, such as the type used by the appellant, its alcohol content, if any, the smell which it produces, or otherwise. 80) In my view there is no merit to this ground of appeal. 81) 3rd Ground of Appeal will deal with the third ground of appeal together with the 11th ground of appeal later in these reasons. 82) 4th Ground of Appeal That the Crown Attorney’s opening address was prejudicial, inflammatory, and unheeding of both the role of the Crown in adversarial proceedings and the objections of defence counsel and the learned trial judge. 83) have carefully reviewed the opening address of counsel for the Crown. The trial judge found it to be objectionable that Crown counsel went into too much detail as to what the witnesses he proposed to call would say. The trial judge spoke to counsel about that in the presence of the jury, and reminded the jury that what counsel says witness saw and observed is proof of nothing and the jury was to consider only what the witnesses say. 84) Counsel for the appellant has not pointed to anything specific in this address (nor do consider there to be anything in that address) that is of such an inflammatory nature as to have prejudiced the appellant from having fair trial. I would dismiss this ground of appeal. 85) 5th Ground of Appeal will deal with the 5th ground of appeal along with the 12th ground of appeal later in these reasons. 86) 6th Ground of Appeal That the learned trial judge erred in finding that the Crown Attorney’s actions in collaborating with the MacRae family’s civil lawyer, who the Crown admitted was taking notes for him in the courtroom, did not amount to sufficient grounds either for disqualifying the Crown Attorney or for finding an abuse of process. 87) On the third day of the trial, and during the re-direct examination of the paramedic, Travis MacNeil, an exchange took place between counsel as to whether matter had already been dealt with on direct and cross-examination, and whether it was proper redirect examination. The jury was excused while the matter was argued before the trial judge. During this discussion, counsel for the Crown asked if he could check with counsel for the MacRae family (who was present in court on watching brief taking notes). In the discussion which ensued, counsel for the appellant submitted to the trial judge that Crown counsel was not being impartial by collaborating with the MacRae family lawyer and that such conduct amounted to an abuse of process. 88) In dealing with the matter the trial judge spoke of the need that justice must be seen to be done, that Crown counsel must present the evidence in fair and impartial manner, and that Crown counsel not act in collaboration with the MacRae family lawyer. Having made those comments the trial judge said that he was satisfied that the Crown had not abused the process, and that from his observations during the trial the Crown counsel was acting in an impartial manner, and that as far as the trial judge was concerned Crown counsel was still fulfilling his role as Crown counsel in this matter. In my opinion, counsel for the appellant has not demonstrated that the trial judge should have declared mistrial, or that there is any basis on which this court can interfere with the exercise of his discretion in not declaring mistrial. 89) I would dismiss this ground of appeal. 90) The 7th, 9th and 10th grounds of appeal will be dealt with in considering the 12th ground of appeal; and will deal with the 8th ground of appeal along with the 11th ground of appeal. 91) 11th Ground of Appeal consideration of the appellant’s ground of appeal number 11 also involves consideration of ground of appeal numbers 3, and 11 which are set out as follows: 3rd Ground of Appeal That the learned trial judge erred in law in not expressly stating to the final lot of jurors that ground for general exemption was personal knowledge of the facts of the case although such direction had been given to the initial jury array in no uncertain terms. 8th Ground of Appeal That the learned trial judge erred in law in ruling that he was without jurisdiction to hear the motion for mistrial based on the allegation of juror bias. He further erred in law in ruling that he declined jurisdiction to hear the mistrial application having already found that he did not have such jurisdiction in the first place. 11th Ground of Appeal That the appellant’s right to fair trial as guaranteed under ss. and 11(d) of the Canadian Charter of Rights and Freedoms further was breached as result of juror bias. The appellant intends to make application to introduce fresh evidence that, it is submitted, will establish that juror [name of juror], immediately before being sworn in as juror, stated to another potential juror, Gordon Matheson, that she had already decided the appellant was guilty as charged. 92) With respect to the 3rd ground of appeal, this trial was held in Baddeck, Nova Scotia. Initial jury selection was held in Sydney, Nova Scotia about one week before the trial. During jury selection in Sydney the trial judge, in addressing the jury panel on exemptions, said the following: Now the reason you might want to seek exemption, if you do, and the reasons that we will grant exemptions consist of, that you are related to the accused; you have close personal relationship with the accused; you have personal knowledge of the events surrounding this particular trial; or possibly you are related to one of the crown witnesses. 93) When the trial began, one week later in Baddeck, unexpected developments resulted in the loss of some of the members of the jury who had been selected to serve. The sheriff was required to go out to the streets of Baddeck to enlist potential candidates. In the final selection process the trial judge did not repeat, as specific ground for seeking exemption, juror’s close personal knowledge of the events surrounding this particular trial. 94) Considering the various factors which take into account, later in these reasons, in dismissing the appellant’s 11th ground of appeal, this particular omission by the trial judge is not significant. I would therefore dismiss this ground of appeal. 95) consideration of the 8th and 11th grounds of appeal involves the following background information. 96) Counsel for the appellant sought leave of the court to introduce fresh evidence on the hearing of this appeal, particularly as it relates to ground of appeal number 11. The Crown did not oppose this application except to the extent that the evidence sought to be introduced was otherwise inadmissible, because it was hearsay. With the exception of the evidence that was hearsay the court agreed to admit and consider the evidence because the purpose of that evidence was to challenge the validity of the trial process itself (see R. v. Cole (1996), 1996 CanLII 5286 (NS CA), 152 N.S.R. (2d) 321 (N.S.C.A.) also R. v. W.W. and I.W. (1995), 1995 CanLII 3505 (ON CA), 100 C.C.C. (3d) 225 Ont. C.A.). 97) The substance of the evidence in question is as follows. Gordon Matheson of Baddeck, Nova Scotia is employed with the Nova Scotia Government at the Baddeck Provincial Building. He was in his office on the 21st of June, 1999 when he was approached by the sheriff’s deputies. He was asked to appear at the courthouse in 20 minutes as he was prospective juror in the trial which is the subject of this appeal. He reported to the courthouse between 11:30 a.m. and 12:00 noon on that day. He and another person, whom will refer to as Juror No. 12, waited approximately 10 minutes before being called into the courtroom. Mr. Matheson and Juror No. 12 were seated together, making small talk, before the judge came into the courtroom. Juror No. 12 said to Mr. Matheson at this time “I don’t know why they would be having trial over this, the woman was drunk and on the wrong side of the road.” 98) Mr. Matheson deposed that he felt this was an inappropriate thing to say and that nothing further was said about the matter. 99) Because he and his wife knew some of the witnesses at the trial, Mr. Matheson said that he was not selected for the jury and was released. Juror No. 12 was selected. Mr. Matheson gave statement to private investigator with respect to this matter on July 7th, six days after the jury had rendered its verdict in this case. 100) This matter came to the attention of counsel for the defence on July 2nd, the day following the jury’s verdict. Counsel for the defence spoke with counsel for the Crown and indicated that he was going to make an application before the trial judge for declaration of mistrial. The application was made on August 13th and heard by the trial judge on September 7th. The trial judge decided, correctly in my view, on the basis of the decision of this court in R. v. Gumbly (1996), 1996 CanLII 5245 (NS CA), 155 N.S.R. (2d) 117 that verdict having been rendered and the jury having been discharged, he had no jurisdiction to consider the motion for mistrial. 101) That is sufficient to dispose of the appellant’s 8th ground of appeal. 102) As to the 11th ground of appeal, the question that must be addressed is whether the statement made by Juror No. 12, before assuming her role as juror, don’t know why they would be having trial over this, the woman was drunk and on the wrong side of the road. establishes reasonable apprehension of bias, such that the appellant’s right to trial before an impartial tribunal has been breached. If it does, would have no recourse but to order new trial. The fact that the reasonableness of the verdict, on the evidence, is not raised as ground of appeal by the appellant is irrelevant. In R. v. Curragh Inc., 1997 CanLII 381 (SCC), [1997] S.C.R. 537 Justice La Forest and Justice Cory, writing jointly for the majority, said at p. 543-44: The properly drawn conclusion that there is reasonable apprehension of bias will ordinarily lead inexorably to the decision that new trial must be held. In circumstances where reasonable apprehension of bias is demonstrated the trial judge has no further jurisdiction in the proceedings and there is no alternative to new trial. The significance of reasonable apprehension of bias was considered by this Court in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC), [1992] S.C.R. 623, at p. 645: As have stated, it is impossible to have fair hearing or to have procedural fairness if reasonable apprehension of bias has been established. If there has been denial of right to fair hearing it cannot be cured by the tribunal's subsequent decision. decision of tribunal which denied the parties fair hearing cannot be simply voidable and rendered valid as result of the subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before tribunal. The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void. [Emphasis added.] If that be true of proceeding before an administrative tribunal it must apply with even greater force to criminal trial. 103) As to the test which should be applied for finding reasonable apprehension of bias, Justice Cory said the following in R. v. (R.D.), 1997 CanLII 324 (SCC), [1997] S.C.R. 484 at p. 530-531: The manner in which the test for bias should be applied was set out with great clarity by de Grandpré J. in his dissenting reasons in Committee for Justice and Liberty v. National Energy Board, [1978] 1. S.C.R. 369, at p. 394: [T]he apprehension of bias must be reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. [The] test is "what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. ." This test has been adopted and applied for the past two decades. It contains two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para. 31. Further the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including "the traditions of integrity and impartiality that form part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold": R. v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark, supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at para. 34. To that would add that the reasonable person should also be taken to be aware of the social reality that forms the background to particular case, such as societal awareness and acknowledgment of the prevalence of racism or gender bias in particular community. The appellant submitted that the test requires demonstration of "real likelihood" of bias, in the sense that bias is probable, rather than "mere suspicion". This submission appears to be unnecessary in light of the sound observations of de Grandpré J. in Committee for Justice and Liberty, supra, at pp. 394-95: can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonable suspicion of bias', or 'real likelihood of bias'. The grounds for this apprehension must, however, be substantial and entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the "very sensitive or scrupulous conscience". (emphasis in original) Nonetheless the English and Canadian case law does properly support the appellant's contention that real likelihood or probability of bias must be demonstrated, and that mere suspicion is not enough. [citations omitted] Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for finding of real or perceived bias is high. It is finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is serious step that should not be undertaken lightly. The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para. 30. Further, whether reasonable apprehension of bias arises will depend entirely on the facts of the case. (Emphasis added) 104) The test for partiality set out in S.(R.D.) governs jurors as well as judges. But the test must be applied by paying close attention to all of the circumstances related to the alleged bias, including the type of bias alleged, its source, the point in the proceedings at which the allegation arises and distinctions between the roles and experiences of prospective jurors as compared to professional judges. 105) S.(R.D.) makes clear that partiality consists of both an attitude and behaviour based upon it: see, for example, Cory, J. at 107. As Doherty, J.A. said in R. v. Parks (1993), 1993 CanLII 3383 (ON CA), 15 O.R. (3d) 324 (Ont. C.A.); leave to appeal denied [1994] S.C.R. x; at 336, “Partiality has both an attitudinal and behavioural component. It refers to one who has certain preconceived biases, and who will allow those biases to affect his or her verdict despite the trial safeguards designed to prevent reliance on those biases.” Having opinions or knowledge, of itself, is not the issue. Impartiality does not demand that prospective jurors have no opinions or knowledge of the case, but only that they can set them aside. 106) In this case, both the type and source of the alleged bias are highly relevant to the question of whether reasonable person, fully apprised of the circumstances, would apprehend bias as result of the comment revealing the prospective juror’s knowledge and opinion concerning the case. 107) turn first to the source of the bias alleged. Deane, J. in Webb and Hay v. The Queen (1994), 181 C.L.R. 41 (Aus. H.C.) suggested at §12 that allegations of juror bias may be grouped into four main (although at times overlapping) categories related to the source of the alleged bias: disqualification by interest, disqualification by conduct, disqualification by association and disqualification by extraneous information. The source of the alleged bias is relevant to how reasonable person would react to an allegation in particular circumstances. For example, with respect to disqualification by interest or association, the age old maxim that one cannot be judge in one’s own case will be relevant. Such situations are recognized as ones of “obvious partiality” as that term is used in connection with s. 632 of the Criminal Code and do not arise from the prospective juror’s lack of understanding of the criminal trial process or the role and duty of the jury. The appearance of bias in such case cannot likely be removed by the judge’s instructions or cautions. Much the same may be said about bias based on conduct. Allegations of misconduct by or in relation to jurors will generally involve actions by jurors after they have received cautions and directions from the judge or improper actions by others that compromise the integrity of the jury’s deliberations. Further instructions from the judge will provide modest, if any, assurance that the fault which has already occurred will be corrected. To the extent that the juror’s misconduct might be thought to arise from ignorance of the process, the fact that it has occurred gives rise to serious doubts that future instructions will be more successful in undoing it than those already given were in preventing it. 108) Unlike the situations just discussed, the allegation of bias in this case falls into Deane, J.’s fourth category in which the source of the alleged bias is extraneous information. The concern is that previously held opinion, expressed before the juror has received instruction from the judge or taken the oath of office, has prevented the juror from behaving impartially. 109) Special considerations are relevant with respect to this sort of allegation. The first is that reasonable person would not expect prospective juror to come to court having heard nothing about the case. As the Ontario Court of Appeal said in v. Hubbert (1976), 1975 CanLII 53 (ON CA), 29 C.C.C. (2d) 279; aff’d 1977 CanLII 15 (SCC), [1977] S.C.R. 267, “Prior information about case, and even the holding of tentative opinion about it, does not make partial juror sworn to render true verdict according to the evidence.” As noted earlier, knowledge of and opinions about the case (i.e., the attitudinal component of bias) do not alone constitute partiality. Partiality consists of the inability to put them aside. 110) The second is that the statement by this prospective juror suggesting extraneous knowledge was made before taking the oath. It is common experience that people in informal settings may engage in “loose talk” which is quickly forgotten when they, themselves, undertake the solemn duty and responsibility of judging. Here, the statement was made before there was any instruction about the process, before the taking of the juror’s oath and before detailed instructions on what was expected by the judge. The strong statements of view made by this juror are, of course, troubling. However, they were made by prospective juror. They were not made by professional judge who would be taken at the time of making such remarks to understand the process and his or her responsibilities in it. Nor were they made by selected and sworn juror who, at the time they were made, had taken the oath of office and received appropriate instruction about his or her role and responsibilities. These circumstances are ones which reasonable person would take into account in assessing whether the juror was partial. 111) The nature of the alleged bias is also relevant to this assessment. The bias alleged here has been referred to as “specific” bias because it relates to the particular facts of the case. Concerns about bias based on extraneous knowledge tend to arise from unreflective comment and in absence of knowledge or understanding of the trial process or the juror’s role. reasonable person, fully apprised of the circumstances, could attribute statements of this kind to lack of knowledge concerning the trial process and the juror’s role rather than to any inability of the prospective juror to judge impartially. Moreover, reasonable person could think that an allegation of bias based on extraneous knowledge is likely to be overcome by the taking of the oath of office and proper judicial instruction on the role and responsibilities of jurors. The situation, and the reasonable perception of it, might be different where it is alleged that there was some deep-seated, generic bias, such as racial prejudice. Such bias tends to be deeply ingrained, difficult to put aside even with conscious effort and less likely to yield to judicial instruction: see v. Williams, 1998 CanLII 782 (SCC), [1998] S.C.R. 1128 at 1138. 112) Finally, any challenge after the fact must be placed in the context of the detailed and comprehensive provisions relating to jury selection in the Criminal Code. After the fact inquiries concerning juror’s alleged bias resulting from extraneous information must be undertaken with great circumspection. There can rarely be anything resembling full inquiry into or investigation of the allegation. Moreover, in cases other than those of obvious partiality, the Code entrusts the determination of juror partiality, when challenged prior to trial, to other jurors, not to judges. judge will rarely be doing service to the jury system by increasing judicial intrusion into jury deliberations. As Dickson, C.J. said in R. v. Barrow, 1987 CanLII 11 (SCC), [1987] S.C.R. 694 at 714, “The Code sets out detailed process for the selection of an impartial jury. ... Overall it is comprehensive scheme designed to insure as fair jury as possible and to ensure that the parties and the public at large are convinced of its impartiality. Any addition to this process from another source would upset the balance of the carefully defined jury selection process.” Where there is no other evidence of juror misconduct and the alleged bias arises from statements by prospective juror evidencing knowledge or opinions about the case and is raised after the fact, the results of properly conducted jury selection process should be set aside only in compelling circumstances. 113) Since the test for apprehension of bias involves the conclusion of an informed person, will now review the circumstances which are present in this matter as part of the process of determining if the appellant has met the onus described by Justice Cory in S.(R.D.). 114) We know very little about the statement of Juror No. 12 which is alleged to give rise to apprehension of bias; namely, don’t know why they would be having trial over this, the woman was drunk and on the wrong side of the road. except that it was made, and the Crown does not dispute that fact. Mr. Matheson, to whom the statement was made, felt that it was inappropriate, yet he did not report it to anyone associated with the trial until after the trial had concluded. With no further information about the statement, or about Juror No. 12 who made that statement, we have to assume from the statement itself that Juror No. 12 had formed preliminary view about the case before she assumed her role as juror. We do not know the source of that view. 115) Having made this statement, Juror No. 12, after having been selected to serve as juror, took an oath of office as follows: Do you swear you shall well and truly try and true deliverance make between our sovereign lady the Queen and the accused at the bar, whom you shall have in charge, and true verdict give, according to the evidence, so help you God? 116) On number of occasions, the jurors were reminded, both by the trial judge and by counsel, that it was their duty to decide the case only on the basis of the evidence they heard. 117) Included in his opening remarks to the jury the trial judge said the following: You have been selected as the judges of the facts by both the accused Ms. Lawrence and the prosecution. It is your duty to consider and to weigh the evidence without sympathy or prejudice for or against any party to this trial because as you know it is important that justice not only be done but that it be seen to be done. You must not discuss this case with anyone nor let anyone tell you anything about it outside the courtroom. would ask you also not to discuss the case amongst yourselves until all of the evidence has been tendered because this would help to avoid the early danger of making premature conclusion about the matter when in fact all of the evidence is not before you. Your role is one of being patient, and carefully listening to the evidence. Now if you’ve heard or read anything about this case it is your duty to banish any such recollection from your mind. You must, as said earlier, decide this case as to whether or not the accused is innocent or guilty solely from the evidence that you hear in the courtroom during this trial. 118) At the close of the Crown’s case, the court adjourned for the weekend. Prior to the adjournment the trial judge said the jury: just want to remind you of one little thing that we did before. That you not discuss this case with your friends if you can at all possible, and you are only to go on the evidence you receive here in the courtroom during the course of the trial, anything you read or see don’t pay any attention to that. Okay. 119) In his address to the jury, counsel for the appellant said the following: It is your role as judges to assess the evidence that you have heard, make findings of fact based on the evidence that you have heard. Based on what you have heard here in court. 120) In his charge to the jury at the conclusion of the trial, the trial judge said the following to the jury: As told you before you must base your decision only on the evidence you heard in this courtroom during the course of this trial. You cannot base your evidence on matters that you might have read or heard about outside the courtroom. Only the evidence that is sworn and given before you in the courtroom is what you are to consider in light of the instructions that give to you today. So again, anything you might have heard or read outside the courtroom has nothing whatever to do with this case as far as your consideration is concerned. You are only to consider what you heard on the witness stand, the arguments of counsel and my charge to you. As judges of the facts it is your duty to decide those facts in this case as they have been repeated in the courtroom and as you find them to be. When you go to the jury room of course as have said, before, you must consult with one another, listen to one another, deliberate with view of reaching just verdict based on the evidence that you’ve heard in the courtroom. So in conclusion want to say am confident that you have taken your oath seriously and you will recall it is an oath to well and truly try this charge and to render true verdict according to the evidence and that’s the evidence you’ve heard in the courtroom on the witness stand and through the exhibits. That’s your oath. 121) In addition to the above the jurors, of course, received clear and careful instructions with respect to the presumption of innocence, and the onus on the Crown in criminal case to prove the guilt of the accused beyond reasonable doubt. 122) Following the trial judge’s instructions, the jury commenced their deliberations at 12:15 p.m. on June 30, 1999. The jury, of twelve, deliberated for six hours before being sequestered for the night. In that six-hour period the jury asked to hear the evidence of Dr. Genge, and they asked for further instructions from the trial judge on the issue of negligence. The jury resumed deliberations the next morning. They deliberated all morning and returned their verdict at 2:10 p.m. on July 1, 1999. The verdict, as is required, was unanimous. 123) The juror’s oath of office, together with the careful and detailed instructions given to the juror, are, in part, reasons why there is an initial presumption in this country that juror will be indifferent or impartial and perform his or her duties in accordance with the oath of office. See R. v. Hubbert (1976), 1975 CanLII 53 (ON CA), 29 C.C.C. 279 (Ont. C.A.), also R. v. Williams, 1998 CanLII 782 (SCC), [1998] S.C.R. 1128 per McLachlin, J. at p. 1139. 124) In R. v. Pan (1999), 1999 CanLII 3720 (ON CA), 134 C.C.C. (3d) (appeal heard, and reserved, December 8, 2000, [1999] S.C.C.A. No. 370) five member panel of the Ontario Court of Appeal was considering, inter alia, the constitutionality of the common law exclusionary rule of evidence prohibiting any inquiry into the deliberations of jury. In its assessment of this rule, the reasons for judgment of four of the five member panel referred to other safeguards which are in place to ensure that an accused may be convicted only on the basis of legally admissible relevant and probative evidence properly adduced before the trier of fact. Paragraphs 120 and 121 of the judgment are as follows: The appellants correctly note that one of the basic tenets of our legal system is the principle that an accused may be convicted only on the basis of legally admissible, relevant and probative evidence properly adduced before the trier of fact. This requirement derives from the basic requirement of fairness. The appellants are also correct in noting that the danger of juries making use of impermissible and irrelevant considerations is well recognized in our jurisprudence. Indeed, many of our rules are intended to guard against that eventuality and ensure that jurors properly discharge their oaths. Crown counsel lists some of these safeguards in her factum: the availability of peremptory challenges which permit some screening of prospective jurors; the availability of challenges for cause where there is demonstrated realistic potential for partiality; the juror’s oath or affirmation which is intended to bind the conscience of some who might otherwise be disposed to decide matters based on assumptions and preconceptions; the judicial exclusion of evidence where the risk that it might be misused outweighs its probative force; judicial instructions in the charge to the jury; the sequestration of jurors during the deliberation process; the non-publication of proceedings taking place in the absence of the jury; the requirement of unanimity; and the polling of individual jurors. 125) now return to the critical question that must be addressed with respect to this appeal in accordance with the test for apprehension of bias. What would an informed person viewing the matter realistically and practically and having thought the matter through conclude? Given all of the circumstances which have set out, is it reasonable to conclude that the statement made by Juror No. 12 raises reasonable apprehension of bias such that the appellant would not have received fair trial? 126) While the uninformed may have suspicions, in my opinion, and in the circumstances of this case as have described them, an informed person would not conclude that the statement in question, of Juror No. 12, raises reasonable apprehension of bias such that the appellant would not have received fair trial from the 12-member jury panel. 127) In similar set of circumstances, the British Columbia Court of Appeal reached the same conclusion in the case of R. v. L.H.S. (1999), 1999 BCCA 307 (CanLII), 122 B.C.A.C. 300; [1999] B.C.J. No. 1073. 128) The circumstances which compel me to this conclusion are: 1. The statement by Juror No. 12 was made before she took an oath to decide the case according to the evidence. The 11 other jurors took the same oath; 2. The importance of deciding the case only on the evidence heard in the courtroom was stressed to all of the members of the jury by the trial judge on several occasions during the course of the trial; 3. All members of the jury were given clear and careful instructions with respect to the presumption of innocence and the onus on the Crown to prove the appellant’s guilt beyond reasonable doubt; 4. There is nothing in the transcript of the proceedings of this trial that would indicate that the jury in this case acted in any way other than in accordance with their oath of office and the instructions of the trial judge. For example, there is no suggestion in the record, either from jury questions, requests for help from the Foreman, or otherwise, which might lead an informed person to conclude that Juror No. 12 had ignored her oath or had improper influence upon her fellow jurors. Further, as required, the verdict of the jury was unanimous. 129) In this day and age of mass media reporting, it is unrealistic to think that person who is prospective juror comes to perform the role of juror without any information with respect to the facts of the matter about to be tried. This is especially so in small town like Baddeck, Nova Scotia, where this motor vehicle accident occurred, and where the offences were tried. The prospective juror may also have preliminary view about the case. It is equally unrealistic to think that this prospective juror, upon taking the oath of office and receiving instructions from the trial judge, cannot ignore the information previously received about the case and consider only the evidence presented at trial; likewise, to put aside any previously held views, and perform his or her duties according to the oath of office. 130) It may very well be different matter if the preliminary views of the prospective juror were based on deep-seated racial, or other, prejudice toward the accused, or in cases of “obvious partiality” to which have referred earlier in these reasons. There is no evidence of either in this case. 131) For all of the above reasons, I would dismiss this ground of appeal. 132) 12th Ground of Appeal That the cumulative effect of events herein argued to have occurred both during the police investigation of the May 28, 1999, incident, and the course of the appellant’s trial, justifies this honourable court in granting either new trial or entering judicial stay on all charges against the appellant arising from the May 28th incident. 133) Counsel for the appellant also includes within the broad issues described in ground of appeal number 12 grounds 5, 7, and 10 which are as follows: 134) 5th Ground of Appeal That the trial Judge erred in law by failing to grant mistrial when the Cape Breton Post newspaper article, referring to the refusal charge which had been severed from the four remaining counts in the indictment, was brought to the court’s attention the day following its publication. 135) 7th Ground of Appeal That the learned trial judge erred in law in treating the “can-say” statement of Lynn Dunlop, crucial Crown witness on the issue of the appellant’s alleged impairment, as equivalent to sworn statement and allowing the Crown motion to conduct direct-examination on the witness based on what the learned trial judge deemed to be appropriate disclosure to defence counsel of the “can-say” statement. 136) 9th Ground of Appeal That the learned trial judge erred in law in not responding to defence counsel’s contention, early in the trial, that the four count indictment was duplicitous, particularly given that upon reading the Crown Attorney’s “Theory of the Crown”, prior to giving his jury charge, the learned trial judge was under the impression that the Crown was “scrubbing the criminal negligence charges.” 137) 10th Ground of Appeal That the learned trial judge erred in law in not vigorously ensuring trial fairness first, by prohibiting the juror, Joe Guillena, either before or after he had been selected as the jury foreperson, from carrying his briefcase into the jury room; second, in allowing the Crown Attorney repeatedly to revisit issues that the Crown had not properly explored during direct examination; and third, in not declaring mistrial when it was discovered, on the second day of deliberation, that the jury had access, in the jury room at the Sydney location, to books and materials, including nine copies of three-page document outlining three-pronged test for reaching possible verdict exclusive of the test that if you believe the evidence of the accused you must acquit. 138) Counsel for the appellant made no submission, either in his factum or in his oral presentation on grounds 5, 7, and 10 of his notice of appeal. He indicated, only, that they would be dealt with in conjunction with his 12th ground of appeal. 139) In his factum dealing with the 12th ground of appeal, counsel for the appellant says the following concerning grounds 5, 7, and 10: Grounds No. 5, 7, and 10, in addition to the other arguments made in this legal brief, point to occurrences in the trial itself that cumulatively bring the appellant’s right to fair trial and the integrity of the judicial system into question. 140) have considered these grounds of appeal, and in my view, they do not, either individually or cumulatively, warrant intervention by this court with the jury’s verdict. Further, with respect to the other grounds of appeal which I have dismissed in these reasons for judgment, since they do not, individually, involve errors of law, they cannot, cumulatively, warrant this court’s intervention. 141) In the result I would dismiss this appeal. Flinn, J.A. Concurred in: Chipman, J.A. Cromwell, J.A.

The appellant was convicted of criminal negligence causing death, causing death in the operation of a motor vehicle while impaired by alcohol, criminal negligence causing bodily harm, and causing bodily harm while under the influence of alcohol. The appellant advanced several grounds of appeal, including that her s. 10 Charter rights had been infringed because she had not been informed of the extent of her jeopardy, namely that there had been serious injuries and perhaps a fatality, before having to respond to a breathalyser demand. She claimed that this should have resulted in a stay of all charges. She also alleged that lost evidence resulted in a breach of her s. 7 Charter right to make full answer and defence. Dismissing the appeal, that assuming without deciding that the appellant's s. 10 Charter right was breached, no evidence was obtained as a result of the breach which was heard by the jury. Further, the evidence which was lost was not an issue in the trial. Finally, there were no errors by the judge on any of the other grounds advanced for appeal.

d_2001nsca44.txt

SUPREME COURT OF NOVA SCOTIA Citation: Farrow v. Butts, 2010 NSSC 387 Date: 2010/10/21 Docket: Syd. No. 330822 Registry: Sydney Between: Jeffery William Farrow v. Kelsey Butts Respondent Judge: The Honourable Justice Patrick J. Murray Heard: September 30, 2010, in Sydney, Nova Scotia Written decision: October 21, 2010 Counsel: Jeffery William Farrow in person Kelsey Butts in person By the Court: [1] The matter before the Court is an Appeal from decision of the Smalls Claims Court of Nova Scotia. On May 18th, 2010 ,the Adjudicator issued a decision against the Appellant, Jeffery Farrow in favour of the Respondent, Kelsey Butts in the amount of $10,852 plus costs of $139.35 for a total of $11,031.35. [2] The Appellant appeals that decision by Notice of Appeal (form 9) dated June 16th, 2010, filed with the Court on the same date and, within the 30 day appeal period. The singular ground of appeal cited in the Appellant’s Notice is a “Failure to Follow the Requirements of Natural Justice”. [3] The particulars of the Appellant’s Appeal are based mainly on his claim that he did not know the hearing took place and, when he failed to show up, Judgment was awarded against him. The learned Adjudicator, after numerous attempts by the Respondent to serve the Appellant, issued an Order for Substituted Service. [4] The terms of that Order required that personal service be effected on the Respondent’s mother and as well that he the Appellant) be notified by “text message” as to the date of the hearing in the Small Claims Court by the Respondent. These matters were both completed by the Respondent prior to the hearing date of May the 18th, 2010. [5] In any Appeal under the Small Claims Court Act the Small Claims Court must issue to the Prothonotary “Stated Case “for review by the Supreme Court on appeal. Section 32(4) of the Act states as follows: “(4) Upon receipt of copy of the notice of appeal, the adjudicator shall, within thirty days, transmit to the prothonotary summary report of the findings of law and fact made in the case on appeal, including the basis of any findings raised in the notice of appeal and any interpretation of documents made by the adjudicator, and copy of any written reasons for decision.” The Stated Case in this matter is set out below by the learned adjudicator and is straight forward. STATED CASE TO: The Prothonotary Summary report of findings of John G. Khattar, an Adjudicator of the Small Claims Court of Nova Scotia. 1. The matter first came before Small Claims Court with an affidavit to request an Order for Substituted Service, dated April 2, 2010. 2. The hearing was held on April 6, 2010 and an Order for Substituted Service was issued on the 20th day of April, 2010, with the adjudicator issuing an Order for Substituted Service by serving a copy of the claim on the Defendant’s mother and by texting to the Defendant the new hearing date. 3. The matter was to return to court on May 18, 2010. 4. At the hearing on May 18, 2010, an Affidavit of Service was produced showing the document had been served on Debbie Monahan, mother of the Defendant on May 6, 2010. 5. In addition, copies of text messages between the Claimant and Defendant were introduced which showed that the Defendant was made aware that the hearing was set down for May 18, 2010, by text message by the Claimant. 6. The adjudicator was satisfied that the requirements of the Order for Substituted Service had been met and he matter proceeded. 7. The Claimant proved her claim as evidenced by Exhibit “2" and judgment for the claimant was awarded in the amount of $10,852.00 plus costs of $139.35 for total of $11.031.35. 8. An Order was issued for this amount. DATED at Sydney, Nova Scotia, this 12th day of July, 2010. (Signed John G. Khattar, Adjudicator) [6] The right to be heard, with or without meritorious defence is right which must be strictly guarded by any Court. When judgment is made in the absence of the Defendant the standard becomes the highest to ensure due process is followed and that no breach of natural justice occurs. [7] Fundamental to natural justice is the notion that party gets to “have its say”. This appeal is such case because the Appellant was ordered to pay “upon default”, the sum referred to above, without the being present. This is commonly referred to as “entering default judgment”. In such cases, the reviewing (Appeal) Court’s level of circumspection must be at it’s highest. Even in such cases, the Claimant, the Respondent in this appeal, must still prove the validity of their claim. [8] In the case of Kemp v. Prescesky, {2006} NSJ No. 174 Justice G. M. Warner considered the issue of setting aside default judgments (in Small Claims Court) as they relate to the requirements of natural justice. In paragraph 19 Justice Warner stated: In my view, it is breach of the requirements of natural justice not to have mechanism in Small Claims Court whereby, if defendant does not file defence or appear at hearing by mistake, but can show that he or she has an arguable defence that should be heard on its merits, and he or she has reasonable excuse for defaulting and is not just stalling, (emphasis added) and there is no prejudice to the claimant's ability to prove its case, the judgment cannot be set aside. In light of the increase in the monetary jurisdiction of the court, it is as relevant to nature justice in the Small Claims Court as it is in the Supreme Court. There is still requirement that the applicant show sufficient bases for the court to exercise discretion to avoid abuse.” [9] This Court hereby adopts the reasoning of Justice Warner and in particular that which states that an Appellant must demonstrate that he or she has reasonable excuse for defaulting. [10] In Kemp v. Prescesky case (supra) ,the Appellant, mistakenly showed up for the hearing on the wrong date, which was one day after the actual hearing. While waiting around for half an hour or more, he checked the doors of the Court House several times, then assumed that Court was cancelled because of bad weather. The Appellant, in that case, then realized that it was the wrong day when he looked at the Notice of Claim then or the next day. [11] In second case, Forsyth Shannon, [1995] N.S.SJ. No. 431 dealing with default judgment issued by the Small Claims Court, Chief Justice Palmeter stated in paragraph 11 with respect to an Appeals court Review under the Act and Regulations: “In any interpretation of the revised legislation and regulations, it is my opinion that an appeal court has much more flexibility in looking into the hearing itself and the various grounds of appeal.” [12] The facts in Forsyth case, supra were that the Appellant’s wife on the night of the hearing became ill and he was forced to attend to her and was prevented from attending the hearing. In effect the appellant made decision that it was more important to attend to his wife’s illness, which appeared suddenly, than to attend the Court hearing. At paragraph 16 of it’s decision the learned Justice stated: “The other ground would be on the basis of denial of natural justice. Natural justice is simply fairness, including procedural fairness. The Adjudicator did nothing wrong in proceeding with the hearing. In my opinion he should not have done otherwise. However, in my opinion, after hearing representations made by the Appellant, this is case which must be reheard to give all parties an opportunity to present evidence and be heard by an Adjudicator. The Court has sympathy for the Appellant and for the reason he did not attend the hearing. Natural justice in my opinion demands that he be heard.” (Emphases added) [13] Turning now to the appeal at hand and the submissions made, the Appellant stated that he was not in contact with his mother for an extended period months). He therefore claimed he did not receive notice of the hearing. He did acknowledge having receiving the text message from the Respondent notifying him of the hearing date, which provision was directed by the adjudicator as part of the order for substituted service. The appellant further advised on the appeal that he chose to ignore the text message because he did not believe her (the Respondent) . The Appellant was questioned by this Court as to whether he made any further inquiries of the Small Claims Court to determine whether he was required to appear on that or any other date for the purpose of hearing. He advised the Court that he did not, believing he would receive something further in writing before the matter was dealt with by the Small Claims Court. [14] Other parts of the submission made by the Appellant did contain some inconsistencies. For example he indicated he was notified of two Court dates by the Respondent but could not provide the second court date Further he indicated he was not in contact with his mother, to whom the order for substituted service was directed, for period of three(3) months. At the Appeal he read from an unsworn letter signed by her his mother) that she was not in contact with her ‘family” for personal reasons. This meant presumably she, his mother, did not make him, the appellant, aware of the hearing date. [15] The Court, however, was not persuaded by the Appellant in his submissions. The text messages submitted by the Respondent showed that the Appellant contacted the Respondent after attempts to contact his mother had been made by her ,with him asking “why are you contacting my mother ”.This was at the same time that personal service was being effected on the Appellant’s mother. It should be noted that new evidence on an appeal is normally inadmissible However as the issue involved the right to fair hearing, the Appellant was allowed to present the contents of the letter as part of his submissions. [16] In considering person’s right to be heard, it does not automatically follow that just because they were not present that their appeal will be allowed. The Court must also view the Respondent’s actions and the courts record of events in determining whether due process was followed and whether the Rules and Regulations prescribed by the Court were adhered to. [17] Regulation 3(1) of the Small Claims Court Act states with respect to service of documents as follows: “Service of Notice of Claim and form for Defence/Counterclaim shall be by personal service or such other manner of as directed by the Court.” (emphasis added) [18] In this case the Court, in control of it’s own procedures, issued an Order for Substituted Service and as outlined in the stated case, made finding that the Order was duly served on the Appellant on May 6th) in accordance with it’s terms. In compliance with the terms, copies of the text messages between the Claimant and Defendant were introduced to show that the Defendant was made aware of the hearing set down for May 18, 2010, hearing date the Appellant stated he chose to ignore. [19] On that hearing date ,(as stated in clause of the Stated Case), the learned Adjudicator was satisfied that the requirements for the Order for substituted service had been met and the matter proceeded. He was also satisfied as per clause of the Stated Case) that the Respondent had proven her claim and made that finding as well. [20] Having reviewed the Stated Case throughly as well as the Notice of Appeal and, having considered the submissions of both the Appellant and the Respondent, the Court is not satisfied that there was failure to follow the requirements of natural justice The Appellant by his own admission was notified as to the hearing date, and by his own admission he chose to ignore it and make no further inquiries . This, is my view, does not constitute reasonable excuse as found in Kemp, supra nor one the Court has sympathy for, as found in Forsyth, supra. The Appellant was not mistaken about the date of the hearing. He was mistaken as to what would be the outcome of his absence. His conscience choice to ignore the hearing notification resulted in the judgment against him. Personal service was effected upon him by the Order for Substituted Service granted by the Adjudicator in accordance with the provisions of the Act and regulations of the Small Claims Court. This means the Respondent did everything that she was directed to do by the Small Claim Court and the Court did what it was authorized to do by statute and the Regulations. Service having been properly effected on the Respondent, the Court is not prepared to interfere with this finding of the Small Claims Adjudicator [21] In the result, the Appellant must accept the consequences of his decision to ignore the notice While I find little merit to his argument he knew nothing of the hearing date, the finding of fact that service had been effected does not result in a failure of natural justice as the court had the jurisdiction and authority to grant such an order. It therefore follows, that the court was entitled to issue default judgement against him. [22] find therefore that the Appellant’s appeal is without merit. [23] Accordingly the Appeal dismissed with costs .

The small claims adjudicator granted an order for substituted service after the respondent had trouble serving the appellant with notice of her claim. As per the order, she personally served the appellant's mother and notified the appellant of the hearing date by text message. He didn't appear and default judgement was granted against the appellant in the amount of $11,031.35. The appellant appealed, arguing the adjudicator failed to follow the natural requirements of justice. He denied being in contact with his mother. He admitted receiving the text message(s) but said he didn't believe the respondent, but didn't make any further inquiries. New evidence (a letter from his mother saying she was not in contact with her son) was allowed on the appeal. Appeal dismissed. The right to be heard is a fundamental right, and an appeal of a default judgment must be subject to the highest scrutiny. Here the respondent's claim was valid. The adjudicator had the jurisdiction/authority to make an order for substituted service and the respondent followed it. At the very least, the appellant was notified of the hearing dates by text message(s). While he may not have believed the messages, he should have taken some steps to confirm with the court if there was indeed a hearing set. He failed to prove he had a reasonable excuse for defaulting, chose to ignore the notice, and was mistaken only as to what would be the outcome if he failed to appear.

b_2010nssc387.txt

J. Summary Offence Ticket #5342574 IN THE PROVINCIAL COURT FOR SASKATCHEWAN SWIFT CURRENT, SASKATCHEWAN BETWEEN: HER MAJESTY THE QUEEN -and- JACK N. EPP Mr. Steve Kritzer for the Crown Mr. Jack Hoffart for the Defence JUDMENT December 12, 2001 L.A MATSALLA, PCJ 1 The accused is charged that he did, on February 26, 2001 in Swift Current district, Saskatchewan, operate a motor vehicle that violated the Minister\'s weight order contrary to section 38(1)(b) of The Highways and Transportation Act, 1997. In essence, it is alleged that the accused operated an overweight vehicle on a road to which the Minister\'s weight restriction applied. Facts Crown has presented evidence that has established that on the date in question Traffic Officer on patrol with colleague was proceeding in northwesterly direction on highway #32 in this province and he was about to turn left onto highway #332 when he noticed tractor-trailer unit travelling in an easterly direction approaching the junction of highways #32 and 332. According to his evidence, "knowing that highway #332 was under restriction" the officer stopped the vehicle which, at that time, was being operated by the accused. Mr. Epp owned the tractor and another person owned the trailer. The unit was weighed using portable scales authorized for that purpose and it was discovered that the unit weight was 22,300 kilograms. Allowing for permitted weight of 6,000 kilograms, the unit was then overweight by 16,300 kilograms. There were three sets of axles on the unit- steering axle, drive axles and tridem axles. No overweigt permit had been issued to the accused and so the officer issued ticket to the accused. municipal administrator of the municipality in which this incident had taken place testified that, to his knowledge, highway #332 was subject to Minister's order that restricted the weight of vehicles on the highway. He went on to say that prior to the incident the municipality and the Department of Highways had entered into an agreement whereby the Minister would restrict the weight of vehicles using highway #332 such that heavier vehicles would be re-directed onto municipal grid roads. As result of the order, since February 18, 2001, the municipality was given authority to issue permits to persons to permit overweight vehicle traffic on highway #332 at any time of the year except spring breakup. In the circumstances, the municipal council directed that notice of the Minister's order be given to the municipal division in which the grid roads were located and to entities situated along highway #1 that were involved in the transport of goods. The accused did not receive such notice. There was no publication in any local newspaper or provincial daily. No notice was given to any other media. Furthermore, the Department of Highways had erected signs in the area. These signs can be described as follows; 1) large weight restriction signs advising that highway #332 was restricted to 8,000 kilograms G.V.W. (gross vehicle weight) and directing highway traffic to follow designated truck route (#1), 2) smaller signs with red truck symbol restricting weight to 8,000 kilograms (#2) 3) smaller signs with truck in green circle directing highway traffic along designated truck route (#3), and 4) small signs warning of an 8,000 kilogram weight restriction (#4). Traffic signs were in place prior to February 26 the last one went up on February 23. Highway #32 runs from the northwest to the southeast and highway #332 runs east and west. There is an intersection at which both highways meet some 15 kilometers northwest of Swift Current. There are signs (#1) on highway #32 one kilometer northwest of the junction facing southeast bound traffic and at point some kilometers southeast of the junction facing northwest bound traffic as well as at various other locations along grid roads in the area. There are signs (#2) at frequent locations on highway #332 west of the junction facing both east, west, and north bound traffic. There are numerous other signs (#3 and #4) along grid road that runs parallel to #332 the grid road that appears to carry the bulk of the re-directed traffic and there are signs along roads in the west and the northwest of the area shown in the map that was marked as exhibit P1. 6 The Crown tendered a copy of a document entitled "Order for Road Restriction on Provincial Highway #332" and the documents purports to be issued under section 35 of The Highway Traffic Act, 1997. The copy appears to be signed by Mr. Maynard Sonntag, Minister of highways and transportation. It should be noted that in the upper right hand corner of the copy there appears to be an original notation that reads as follows THIS COPY CONFORMS TO THE ORIGINAL AND HAS NOT BEEN ALTERED IN ANY WAY. Janet Melnychuk Commissioner for Oaths for Saskatchewan My commission expires November 30, 2004 The defence did not call any evidence. Arguments The Crown argues that the document referred to above is proof of the order of the Minister and so the order, combined with the evidence of the weight of the vehicle, has established the commission of an offence under section 38(1)(b) of The Highways and Transportation Act, 1997. 9 The defence argues the following:a) the document is not proof of the Minister\'s order according to law, andb) even if the document is proof, the order is a "regulation" under the provisions of The Interpretation Act and so the provisions of The Regulations Act applies to it. Since those requirements have not been met, the Crown has not established that an order had been made for the purpose of this case. 10 It is necessary to examine the provisions of number of pieces of provincial legislation namely, The Highways and Transportation Act, 1997 S.S. 1997, c.H-3.01 ("HTA"), The Regulations Act, 1995, S.S. 1995, c.C.R.-16.2 ("RA"), The Saskatchewan Evidence Act, R.S.S. 1978, c.S.-16 ("SEA") and The Interpretation Act, 1995, S.S. 1995, c.I-11.2 ("IA"). The Legislation 11 Section 35 of HTA forms the basis of this charge in that it provides the Minister with authority to make an order. The section reads as follows; 1) The minister may, by order: a) prohibit the operation of vehicles or impose restrictions with respect to the class and gross weight of vehicles or the gross weight that may be transmitted to the roadway through any point or points of contact of any vehicles that may be operated, at the times and for the periods in any year that the minister considers necessary for the protection of any public highway; and b) exempt any vehicle, either wholly or to limited extent, from any order. 2) The minister shall cause notice to be given of an order made pursuant to subsection (1) or of an amendment or cancellation of an order by publishing the order, amendment or cancellation in any manner the minister considers advisable. 12 The relevant portions of section 38 of HTA read as follows: 1) No person shall: ... (b) contravene any provision of minister's order issued pursuant to section 35... 2) Every person who will contravene subsection (1): (a) is guilty of an offence and liable in summary conviction to fine as set forth in Category in Schedule A. 13 The relevant portions of sections and 12 of SEA read as follows: 7) Evidence of any ... order ... made or issued by ... or under the authority of member of the Executive Council being head of department of the government of such province ... may be given in all or any of the modes hereinafter mentioned, that is to say: a) by the production of copy of the official Gazette for the province ... purporting to contain copy of the ... order ... or notice thereof; b) by production of copy of the ... order ... purporting to be printed by the Queen's Printer for Saskatchewan ...; or c) by the production of copy ... of the order ... certified to be true copy by the Clerk or assistant clerk or acting clerk of the Executive Council, or by the head of any department of the provincial ... government or by his deputy or acting deputy, as the case may be. 12) In every case in which the original record could be received in evidence, copy of ... any official or public document belonging to or deposited in department of ... this province ... purporting to be certified under the hand of any officer or person in whose custody the ... official or public document is placed ... shall be received in evidence without proof of the ... signature or of the official character of the person or persons appearing to have signed the same and without further proof thereof. Admissibility 14 The definition of "regulation" in IA includes an "order" (section 2) and regulation is also an "enactment" (section 2) and so the Act applies to "every enactment ... unless contrary intention appears in this Act ..." [section 3(1)]. 15 The RA also states that "regulation" includes an "order" because that Act adopts the definitions set out in IA. Regulations must be filed and the registrar must publish the regulation (section 6) unless the registrar exempts the regulation from publication (section 7). Publication of the regulation is important because the process provides the regulation with judicial recognition (section 10) and section states that person cannot be convicted of an offence against an regulation that has not been published unless ... it is shown that reasonable steps had been taken by the time of the offence to bring the substance of the regulation to the notice of the public, of persons likely to be affected by it or of the person charged. 16 Therefore, for an order to be the basis of prosecution for violation of provision of the Act, the document itself must be admitted into evidence and it must be shown that the document was published. If it had not been published, it may be valid nonetheless for the purpose of the prosecution, provided reasonable steps were taken to bring the regulation to the attention of the public or those persons affected by it. 17 The original document is the best evidence and so copy of what appears to be government document is not admissible as proof unless there is legislation that permits such document to be admitted. 18 The SEA states that an order made or issued by the Lieutenant Governor in Council must be judicially considered (section 10), however the order in this case appears to have been made or issued by the Minister rather than the Lieutenant Governor in Council and so copy of the order ("any official or public document") could be received in evidence only if it had been certified under the hand of person in whose custody the document had been placed (section 12 and section 18). 19 The HTA itself does not refer to the admissibility of Minister's order although it does provide for the admissibility of an inspection certificate of weigh scales and certificate regarding Certificate of Registration for vehicle (section 62). copy of record held by the minister is admissible in evidence as proof of the original (section 61). In this case, however, such record would be record kept in the usual course of business and would not include Minister's order itself. 20 The accused has not put in issue the question as to whether the Minister's order was properly filed [section 4(1) and section 11 RA] and so will not comment on the matter. 21 It is well known that in criminal case provision that enables the Crown to expeditiously prove certain elements of an offence must be strictly satisfied, R. v. Gordon (1972), 1972 CanLII 1288 (BC CA), C.C.C (2d) 132 B.C.C.A Bull J.A. and so, since violation of the HTA is prosecuted under section of The Summary Offences Procedure Act, 1990 S.S. 1990-91, c.S-63.1 which in turn adopts the summary conviction procedure set out in the Criminal Code, the Crown must strictly comply with the provisions respecting proof. 22 will examine the validity of the order for the purposes of this case. It is mandatory for the minister to give notice of the order. There is no evidence before me to indicate that the minister exercised his discretion by determining the most "advisable" manner in which notice was to be given. That being so, will look at what, if any, notice of the order was given. 23 The Minister\'s department - the Department of Highways, placed road signs warning and advising of weight restrictions on highway #332 as well as other signs describing an alternative truck route. Signs were located on #32 (facing in each direction before the junction of 32 and 332) and many more signs along #332 and along the grid roads accessing #332. There was no publication in the Saskatchewan Gazette or in any other print media circulated in the area. As far as can see, it is not the responsibility of the local municipality to satisfy the obligation imposed upon the minister to provide notice of his order but, in this case, the municipality appears to have taken it upon itself to advise persons in the municipal division affected by the weight restriction and to advise other persons in the immediate area that were in the business of hauling. Once again, no other notice to the general public was given. It seems to me that notice of an order made by minister of the provincial Crown affecting public highway should have been given so as to advise as many members of the public as possible. Presumably, publication of the order or notice in the Saskatchewan Gazette would be one method however some notification of the order in the immediate area may also be appropriate. It is not for me to advise the Minister. I can only conclude that the Minister failed to take appropriate steps to cause notice of the order to be given. Even if it could be said that the steps taken by the municipality satisfy the notice provisions for the purposes of this prosecution, I cannot conclude that notifying persons who reside or do business in the immediate area of the road affected by the order is sufficient notice to satisfy the requirement to publish. 24 Even if it could be said that sufficient notice was given, I cannot conclude that Ms. Melnychuk\'s endorsement upon the order that the order "conforms to the original" meets the statutory requirement that the copy must be a certified copy "under the hand of an officer or person in whose custody the ... public document is placed" (section 12 SEA) since I do not know if she had custody of the document or under the hand of any of the persons set out in section 7(c) of SEA since her official capacity is not described. The order was not published in the Saskatchewan Gazette and so a copy of the order so published could not be produced [section 7(a) SEA] and it was not proven that the copy of the order had been printed by the Queen\'s Printer [section 7(b) SEA]. 25 At the end of the day, it has not been established that the order was published for the purpose of this prosecution nor had it been established that the document filed in court is proof of the order itself. Accordingly, it has not been proven, beyond a reasonable doubt, that the accused violated the provisions of section 38(1)(b) of HTA. DATED at SWIFT CURRENT, Saskatchewan, this 12th day of December, A.D. 2001 L.A. MATSALLA Judge of the Provincial Court Of SASKATCHEWAN

The accused was charged with operating an overweight vehicle on a weight restricted road contrary to s.38(1)(b) of the Highways and Transportation Act. No permit had been issued for the tractor trailer. The defence argued the document entitled 'order for road restriction on provincial highway #332 pursuant to s.35 of the Highway Traffic Act' was not proof of the Minister's order according to law; even if the document is proof, the order is a 'regulation' under the Interpretation Act and so the provisions of the Regulations Act applies; since those requirements have not been met, the Crown has not established an order had been made for the purposes of this case. HELD: It was not proven beyond a reasonable doubt that the accused violated s.38(1)(b). It was not established that the order was published for the purpose of this prosecution nor that the document filed in court is proof of the order itself. 1)It is well known that in a criminal case a provision that enables the Crown to expeditiously prove certain elements of an offence must be strictly satisfied. Since a violation of the HTA is prosecuted under s.4 of the Summary Offences Procedure Act, which in turn adopts the Criminal Code summary conviction procedure, the Crown must strictly comply with the provisions respecting proof. 2)It is mandatory for the Minister to give notice of the order and there was no evidence he exercised his discretion by determining the most advisable manner in which notice was to be given. The Minister failed to take appropriate steps to cause notice of the order to be given. The Department of Highways placed road signs warning and advising of weight restrictions on the highway and along grid roads accessing #332, but no notice was given to the general public. Notifying persons who reside or do business in the immediate area of the road is not sufficient to satisfy the requirement to publish. 3)Even if it could be said sufficient notice was given, it could not be concluded that the endorsement upon the order that the order 'conforms to the original' meets the statutory requirement that the copy must be a certified copy 'under the hand of an officer or person in whose custody the...public document is placed' (s.12 SEA) since it was not known if she had custody of the document or under the hand of any of the persons set out in s.7(c) of the SEA since her official capacity is not described. The order was not published in the Saskatchewan Gazette and so a copy of the order so published could not be produced (s.7(a) SEA). It was not proven that the copy of the order had been printed by the Queen's Printer (s.7(b) SEA).

5_2001canlii345.txt

J. NOVA SCOTIA COURT OF APPEAL Citation: R. v. C., 2004 NSCA 135 Date: 20041110 Docket: CAC 217804 Registry: Halifax v. Her Majesty the Queen Respondent Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on August 7, 2008. Restriction on publication: pursuant to s. 486(3) of the Criminal Code Judges: Bateman, Cromwell and Saunders, JJ.A. Appeal Heard: October 5, 2004, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Cromwell, J.A.; Bateman and Saunders, JJ.A. concurring. Counsel: Brian Stephens, for the appellant Kenneth W.F. Fiske, Q.C., for the respondent Publishers of this case please take note that Section 486(3) of the Criminal Code applies and may require editing of this judgment or its heading before publication. The subsection provides: (3) Order restricting publication Subject to subsection (4) where an accused is charged with (a) an offence under section 151, 152, 153, 155, 159, 160, 170, 171, 172, 173, 210, 211, 212, 213, 271, 272, 273, 346 or 347, (b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C-34 of the of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988, the presiding judge or justice may make an order directing that the identity of the complainant or of witness and any information that could disclose the identity of the complainant or witness shall not be published in any document or broadcast in any way. Reasons for judgment: I. Introduction: [1] A cocaine fuelled encounter between the appellant and the woman with whom he was living resulted in his conviction for assault and sexual assault. He appeals the sexual assault conviction, submitting that it is unreasonable, is based on misapplication of the burden of proof and that the judge=s reasons are so deficient so as to constitute an error of law. [2] In my view, the appeal should be dismissed. There was ample evidence which, if believed, justified the conviction. The judge=s reasons, while brief and far from masterful, do not disclose misapplication of the burden of proof and are not so deficient as to themselves constitute an error of law. II. Overview of the Evidence: [3] At the brief trial, three witnesses, C.J. (who was the alleged victim), police officer and the appellant, testified. [4] C.J. said that she and the appellant had been in an intimate and drug related relationship beginning in the summer of 2003. They met while getting high on cocaine and lived together for while after the appellant A... moved in [to her home] and wouldn=t leave ...@. When they first met, he had $6000 that he had received from selling truck which he spent on cocaine to share with her. As result, the appellant thought and C.J. apparently agreed, that she owed him place to live. [5] The offence was alleged to have occurred on the evening of Monday, November 3, 2003 at C.J.=s home in [name of place changed]. This was not another quiet evening at home [6] According to C.J., her 18 year old daughter and friend had come from the city to spend the preceding weekend with her. While the appellant was away from the house tending to some roofing work, C.J. decided to drive her daughter and friend home to the city. As they were preparing to leave by car, the appellant arrived, opened the car door and said words to the effect that C.J. was not going into town without him. He grabbed the screwdriver that was used to start the car instead of key. C.J. went into the house, found smaller screwdriver and then returned to her vehicle to try to start it. According to her, this prompted the appellant to puncture the tires of her car with the screwdriver. She ran back into the house, puncturing one of his tires as she went. At some point in the argument, the appellant threatened to show C.J.=s daughter syringe which C.J. had been using to inject drugs. This prompted C.J. to tell the appellant that they were through. [7] C.J. locked the appellant out of the house, but he kicked in the door. This led to confrontation between them involving knife which ended when the daughter intervened. It was then resolved that C.J. and the appellant would both drive the daughter and her friend home, which, after waiting for the arrival of serviceable vehicle, they did. [8] On the way back, C.J. said that she wanted to get high and so they went to [name of place changed] (after an unsuccessful stop in [...]) and obtained some crack cocaine which they shared upon arriving home in [name of place changed]. They wanted more cocaine and returned to [...] and obtained some which they smoked in the car. They also took some home and smoked there. The appellant then went up to bed. [9] To this point in the story, the evidence of C.J. and the appellant is quite consistent. The appellant testified about the argument when he discovered C.J. was about to leave upon his return home. He admitted that in the course of the argument, he stuck screwdriver through one of her driver=s side tires as she had done to one of his truck tires. He also admitted kicking in the door after C.J. locked him out. His evidence relating to the confrontation with the knife, the threat to show the daughter the syringe and the decision to go together to take the daughter and friend back to the city was similar to C.J.=s. The appellant also agreed that after dropping off her daughter, they wanted to get some cocaine, that they obtained some and smoked it on the way home to [name of place changed] and finished it off once they arrived. As C.J. had testified, the appellant said they then left home to get some more cocaine which they began consuming while away and finished on their return home. [10] There were some differences in their evidence even to this point, however. The appellant=s evidence was that he and C.J. had agreed that he would not let her go into the city by herself. He said that this was part of their effort to stop using cocaine because every time they went into the city alone, they would obtain cocaine. This was his explanation as to why his discovery that C.J. was planning to take her daughter and friend into the city and then return alone led to an argument. C.J., however, denied that the appellant=s concern was that she stop using cocaine, testifying that his concern was A.. more like that [she] would be doing some without him ...@. With respect to the syringe incident, the appellant said that he raised this with C.J.=s daughter hoping that it would provide A... some motivation for [C.J.] to stop using...@ C.J., on the other hand, said that this was an attempt to make her daughter angry with her and prompted her to tell the appellant that their relationship was over. [11] Both the appellant and C.J. testified about the nature of their sexual relationship. (The defence had applied successfully under s. 276(2) and 276.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, to admit such evidence.) C.J. testified that after they used cocaine, the appellant generally wanted to have sex and that she generally did not want to go to bed right away. She said that sometimes they had sex and others they did not. She agreed that there were times when he would try to change her mind and convince her to have sex and that he was sometimes successful if he was nice and showed her some affection. His evidence was to the effect that C.J. generally would stay up after using cocaine looking for crumbs and scraping the pipes trying to get more cocaine and that it was hard to get her to come to bed. When she would come to bed, he said that she was normally mad at him for not getting more cocaine. He would try to initiate sex by holding her, touching her and performing oral sex. His evidence was that generally these efforts were successful and they would have sex and she would apparently forget about wanting more cocaine. It was common ground between the witnesses that the police had been called on previous occasions and that the appellant had left the house for short times as result. There was no suggestion of prior incidents of sexual violence. [12] At the point in the story at which the appellant goes to bed, his testimony and that of C.J. becomes more markedly different. C.J. said that when she came up to bed, she changed into knee length night gown and said to the appellant ADon=t touch me. don=t want ... nothing has changed. don=t want relationship with you. don=t want you in my life. hate you. Just stay away from me.@ He kept trying to put his hands on her, and she kept telling him to leave her alone and pushing him away. He then took hold of her legs, pulled them apart and performed oral sex on her. He had hold of her legs so that she could not move. She tried to push him away and pull herself away but given his weight of about 220 pounds and hers of around 110, she was unable to do so. She was almost crying and told him to stop Aprobably about ten times.@ He put his penis in her vagina and started having intercourse and kept trying to kiss her. She kept telling him to leave her alone A... anywhere from five to twenty times, more like ten to twenty times.@ He started performing oral sex again and then again put his penis in her vagina. Throughout, she was telling him to stop. He finally asked her if she really wanted him to stop and she said she did and he rolled off, saying something to the effect that Asomebody very near and dear to you [who C.J. took to be her daughter] is going to get hurt.@ [13] The appellant=s evidence was that the evening unfolded in accordance with the pattern set on other occasions. He went to bed first and then tried to convince C.J. to come to bed. She came to bed about half or three quarters of an hour later. He said that C.J. A..was being stubborn and blaming [him] about telling her daughter about the syringe@ and they argued about that. He tried to initiate sex. According to his evidence, Ashe was still being stubborn and angry, which was normal routine.@ He performed oral sex on her and then had intercourse. At that point, he got A... the feeling that she wasn=t into it as much as she normally [was].@ He asked her if there was something wrong and she said ANo, I=m not into it. I=m still mad at you...@ and he stopped and went to sleep. He said that during the oral sex, she was moaning and she raised her legs to give him better access and that she A.. was actually pushing [his] head down. ... @. He agreed that he had initiated the sexual activity, that she was stubborn and that she had said to him that the relationship was over because of the syringe incident. He agreed that he could pin her down if he wanted to given their respective sizes. He denied, however, that she had told him to stop other than in response to his question as to whether something was wrong. [14] C.J. called the police. One of the officers who responded testified that he entered the house through Abusted@ door and found C.J. curled up on the couch with blanket around her looking shaken and upset and found the appellant upstairs in bed asleep. III. The Decision of the Trial Judge: [15] The judge=s oral reasons for conviction, after setting out the nature of the charges, are as follows: When we come to the second count, the relationship between [C.J.] and D.S.C. had gone on for period of time since August of >03 in which they did drugs in the form of cocaine and crack cocaine on numerous occasions, and also carried out sexual acts on numerous occasions between that time and November 3rd. On the particular day in question, D.S.C. had informed [C.J.]=s daughter about her drug use by telling her about finding syringe, which upset [C.J.] to the point that she wanted an end to the relationship and on that evening, following couple of sessions in which cocaine was used again, D.S.C. believing the same practice of sexual behaviour could take place, attempted to carry out that behaviour to which [C.J.]=s evidence is that she objected on numerous occasions. And in assessing the credibility of both D.S.C. and [C.J.], I=m satisfied that where there is any variance in the evidence of the two parties, accept the evidence of [C.J.] in this regard. And having regard to the admissions of D.S.C. with respect to sexual behaviour that evening, I=m satisfied that it wasn=t consensual and find him guilty beyond reasonable doubt on the second count. [16] Somewhat restated, the appellant advances three main submissions: first, that the verdict is unreasonable; second, that the judge misapplied the burden of proof by comparing the stories of the complainant and the appellant rather than by asking whether the case had been proved beyond reasonable doubt in light of all of the evidence; and third, that the judge=s reasons for judgment are inadequate to the point that they constitute an error of law because they prejudice the appellant=s right to appellate review. V. Analysis: 1. Unreasonable verdict: [17] The submission concerning the unreasonableness of the verdict has no merit. The test for appellate review of the reasonableness of verdict is whether it is one which properly instructed jury or trial judge, acting judicially, could reasonably have reached: R. v. Corbett, 1973 CanLII 199 (SCC), [1975] S.C.R. 275 at 282; R. v. Biniaris, 2000 SCC 15 (CanLII), [2000] S.C.R. 381 at para. 36. The evidence of the complainant, if accepted, provided an ample basis for judge, acting judicially, to convict the appellant. This is not one of those Arare instances@ in which the trial court=s assessment of credibility A...cannot be supported on any reasonable view of the evidence.@: R. v. Burke, 1996 CanLII 229 (SCC), [1996] S.C.R. 474 at para. 2. Burden of Proof and Inadequacy of Reasons: [18] The remaining two submissions are interrelated. They may be summarized as arguing first, that the judge=s reasons disclose legal error in the application of the W.(D.) principle and second, alternatively, the reasons are so inadequate that they preclude meaningful appellate review of whether the judge properly applied the W.(D.) principle. [19] The principle in the Supreme Court of Canada=s decision in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] S.C.R. 742 is straight-forward: the ultimate issue in any criminal case is not who the jury (or judge) believes but whether, in light of all of the evidence, reasonable doubt about guilt persists. As Binnie, J. put it R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] S.C.R. 869 at para. 65, the ultimate issue is not whether the judge believed the complainant or the appellant or part or all of what they each had to say. The issue at the end of the trial is not credibility but reasonable doubt. [20] It must be remembered that W.(D.) was not concerned with reasons for judgment, but instructions to jury on reasonable doubt. This is important because trial judge=s reasons cannot and should not be read or analyzed as if they were instructions to jury: see R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.) at 204. Instructions are to assist the jury in reaching verdict; reasons for judgment explain why verdict was reached: ibid The test for legal error in judge alone case like this one is not the same as would apply to judge=s charge to jury. The difference is that the jury must receive proper instructions on the law, including this principle, whereas trial judge in giving decision is assumed to know the relevant legal principles absent some basis in the reasons or the trial record for thinking that an error has been made. [21] That said, however, there is no question that the W.(D.) principle applies equally to the reasoning processes of judges and juries. trial judge will be found to have erred, if upon review of the judge=s reasons in light of the trial record, it appears that he or she simply chose between alternative versions offered by the Crown and the defence and, having done so, convicted if the Crown=s version was preferred: see, for example, R. v. Mah (2002), 2002 NSCA 99 (CanLII), 207 N.S.R. (2d) 262; N.S.J. No. 349 (Q.L.)(C.A.). Failure to specifically refer to the W.(D.) principle is not fatal on its own in judge alone trial. The W.(D.) principle is not magic incantation which trial judges acting as triers of fact must mouth to avoid appellate intervention. The question for the appellate court in judge alone case is whether, upon consideration of the whole of the judge=s decision and the evidence at trial, it appears that the judge did not apply the proper test and therefore did not apply his or her mind to the possibility that despite having rejected the evidence of the respondent, there might nevertheless be reasonable doubt: R. v. Brown (1994), 1994 CanLII 7609 (NS CA), 132 N.S.R. (2d) 224; Sheppard at para. 65. [22] The appellant submits that the judge=s reasons show that he fell into the trap of simply choosing the version he preferred. respectfully do not agree. The judge=s reasons, read in light of the record, show that he addressed his mind not only to whose evidence he accepted where the evidence of the complainant and the appellant conflicted, but that he applied the reasonable doubt standard to the whole of the evidence. [23] It is not an error for judge to make finding of credibility as between the complainant and the accused, particularly where they provide the bulk of the evidence as to what happened. This is necessary part of the judge=s duty. While it is not the end of the journey of decision-making, it is necessary intermediate step along the way. Indeed, the first two elements in proper jury instruction on this issue as set out in W.(D.) assume that the jury should decide whether or not they believe the exculpatory evidence of the accused. Those first two steps are: First, if you believe the evidence of the accused, obviously you must acquit. Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. [24] Accordingly, it was not an error for the trial judge here to assess the credibility of the accused in relation to that of the complainant. His statement that AI=m satisfied that where there is any variance in the evidence of the two parties, accept the evidence of [C.J.] ... with respect to sexual behaviour that evening@ was necessary part of the task he had to perform on his way to reaching conclusion. [25] An error under the W.(D.) principle is committed where the judge treats the matter as concluded once this assessment of credibility has been completed. To do so misses the third and critical step in the application of the burden of proof. As described in W.(D.) that last crucial step is as follows: Thirdly, 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. [26] The key question in this case is whether the trial judge erred by failing to take this last critical step. In my view, his reasons, read in conjunction with the record, show that he did not. After doing his credibility assessment, the judge said: AAnd having regard to the admissions of D.S.C. with respect to sexual behaviour that evening, I=m satisfied that it wasn=t consensual and find him guilty beyond reasonable doubt. ...@ This statement, read in light of the evidence which the judge had just finished hearing, persuades me that the judge went on after making his credibility finding and considered whether he had reasonable doubt in light of the whole of the evidence. [27] The only live issue at this trial was whether the Crown had proven the absence of C.J.=s consent. The complainant=s evidence was that she did not, in fact, consent and that her lack of consent was consistently and clearly communicated to the appellant. While his evidence was to the contrary, the appellant agreed with number of propositions that the judge apparently accepted as the Aadmissions@ to which he referred. These Aadmissions@ no doubt included the following: 1. The complainant was very upset by what the appellant had done in relation to her daughter; 2. She had told him in bed before he initiated sexual activity that the relationship between them was over; 3. She was being Astubborn@ in relation to the sexual activity which he wished to initiate; 4. He did not claim that she had expressly consented to the sexual activity; 5. He said that Ait was normal@ for her not to want to have sex with him; 6. While claiming that the pattern that night was their usual pattern, he admitted that the incident with the daughter was Ahuge issue@ for C.J. and that no incident like that involving her daughter had arisen before; 7. While he claimed that she had responded to his performing oral sex, he admitted that she failed to respond as usual to intercourse and told him that she was still mad at him. [28] In my opinion, the judge=s admittedly short-hand reference to the evidence which he had just heard puts to rest any suggestion that he simply chose the version he preferred and convicted. Rather, it shows that the judge applied the reasonable doubt standard to the whole of the evidence as he was obliged to do before entering the conviction. His reference to the appellant=s testimony, and in particular the appellant=s Aadmissions@ in relation to the reasonable doubt standard, show, in my view, that the judge applied the correct standard of proof to the whole of the evidence. It follows that in my view, the judge=s brief reasons, read in light of the brief and quite straight-forward evidence at trial, do not disclose that he committed the error of law of failing to apply the reasonable doubt standard to the whole of the evidence. [29] The appellant relies on R. v. Rowe, [2004] N.S.J. No. 244 (Q.L.)(C.A.), but in my view that case is readily distinguishable from this one. In Rowe, eight witnesses testified. The judge=s reasons simply expressed preference for the evidence of four of them over that of the accused and did not indicate that the reasonable doubt standard had been applied to the evidence as whole. The Court concluded in Rowe that A... it might well be supposed that the trial judge convicted the appellant after merely comparing her version of events to that offered by the Crown witnesses, and favouring the latter.@ (at para. 4) As have said earlier, these concerns do not arise from the record and reasons in this case. b. Inadequate Reasons: [30] The appellant=s alternative submission is that the trial judge=s reasons are so inadequate that it is not possible for an appellate court to conduct proper appellate review of his decision. [31] This submission is based on the Supreme Court=s decision in Sheppard. It was held in that case that the inadequacy of the trial judge=s reasons was an error of law because it prevented the appellate court from assessing whether the trial judge had addressed his mind, as he was required to do under the W.(D.) principle, to the possibility that despite having rejected the evidence of the accused, there might nevertheless, given the peculiar gaps in the Crown=s evidence in that case, be reasonable doubt as to the proof of guilt: at para. [32] Deficiency of reasons is not free-standing ground of appeal. As Binnie, J. put it in Sheppard, an appellate court is not given the power to intervene simply because it thinks the trial court did poor job of expressing itself. Instead, functional test is to be applied which requires the appellant to show not only that the reasons are deficient, but also that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in criminal case: Sheppard at paras. [33] The application of this functional test depends on all of the circumstances of the particular case. As Binnie, J. said in Sheppard at para. 46: 46 These cases make it clear, think, that the duty to give reasons, where it exists,arises out of the circumstances of particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such case, even if the record discloses evidence that on one view could support reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. (Emphasis added) [34] Important considerations in applying the functional test are whether there are difficult points of law on which no conclusion is expressed or critical factual findings on confused or contradictory evidence which are unexplained and which are not otherwise intelligible from the record: Sheppard at paras. [35] Given the emphasis in Sheppard on the point that the application of the functional test depends on the circumstances of the particular case, it is appropriate to review the facts and reasons in Sheppard in further detail. [36] Sheppard was case in which it was argued, as it is here, that the trial judge=s reasons precluded meaningful appellate review of whether the W.(D.) principle had been respected. [37] In Sheppard, the accused was carpenter charged with possession of two stolen windows. He had had stormy relationship with his girlfriend from whom he had separated on bad terms. He had been renovating his house. Two days after the separation, the girl friend told the police that he had confessed to her to stealing two windows from local supplier. The supplier confirmed that two windows were missing, although this had not been noticed until the supplier checked his inventory after being contacted by the police and there was no way of telling how long they had been missing. The windows had been kept on truck parked across the road from the shop. Employees and passers-by had access to the area and there had been no sign of forced entry. At trial, the girlfriend=s evidence was the only evidence connecting the accused to the missing windows. While her evidence was that the accused had said that he stole the windows to use in his house, there was no evidence that search had been made or that stolen windows had been found in the accused=s possession. She did not deny that two days before she went to the police, she said to the accused: AI hope you live your life in misery. If have anything to do with it, you will.@ The accused testified and asserted his innocence. [38] The trial judge convicted the accused. His reasons in their entirety were as follows: AHaving considered all the testimony in this case, and reminding myself of the burden on the Crown and the credibility of witnesses, and how this is to be assessed, find the defendant guilty as charged.@ [39] The Supreme Court of Canada agreed with majority of the Court of Appeal of Newfoundland and Labrador that the reasons were inadequate and constituted an error of law. Noting that not only had the accused testified and denied the charge but that the allegedly stolen property was never found in the accused=s possession, the Court said that it shared the Abewilderment@ of the accused and the majority of the Court of Appeal as to what pathway through the evidence the judge could have taken to reach finding of guilt, given these weaknesses in the Crown=s evidence: see paras. 59 62. The Court also agreed that the reasons, which it characterized as so generic as to be no reasons at all, prevented any meaningful appellate review of whether, despite the rejection of the accused=s evidence but given the peculiar gaps in the Crown=s evidence, there was reasonable doubt on the whole of the evidence. note that in Sheppard, even the trial judge=s rejection of the accused=s evidence and the acceptance of the girlfriend=s testimony are not explicit but rather must be inferred from the result which he reached. [40] The Court in Sheppard made it clear that not every failure by trial judge to fully explain the pathway taken to the result reached will constitute an error of law. Binnie, J. said at para. 60 that A... in the vast majority of criminal cases both the issues and the pathway taken by the trial judge to the result will likely be clear to all concerned. Accountability seeks basic fairness, not perfection, and does not justify an undue shift in focus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it.@ [41] The reasons of the judge and the state of the record in this case are entirely different than in Sheppard. The reasons here cannot be said to be so generic as to be no reasons at all. The judge=s reasons provide an overview of the factual background, correctly identify the issue as to absence of consent, make finding of credibility in relation to the conflicting evidence of the only two substantive witnesses, advert to the evidence of the accused and apply the reasonable doubt standard to the whole of the evidence. Each of these elements was absent in the Sheppard case. The record in this case does not have any of the obvious gaps or other highly troublesome aspects found in Sheppard. [42] Applying the Sheppard principles to the case at hand, do not think that the reasons given by the judge in this case are so inadequate as to constitute an error law. There was only one live issue in this case, that of the absence of consent. The evidence was not complicated or confused and there were no unusual gaps in it or difficult issues of law to be resolved. The reasons, while very brief, are not simply generic. They make clear that the accused=s evidence was considered not only in light of the question of credibility but also of the ultimate issue of reasonable doubt. The reasons read in conjunction with the brief record make clear the pathway through the evidence and law which the judge took to arrive at his conclusion. As demonstrated by the discussion of the preceding submissions of the appellant, the reasons do not preclude meaningful appellate review of whether the judge properly applied the burden of proof to the evidence as a whole. [43] In summary, these reasons, while certainly open to criticism, do not in my view, either disclose an error of law or preclude meaningful appellate review in the particular circumstances of this case. VI. Disposition: [44] I would dismiss the appeal. Cromwell, J.A. Concurred in: Bateman, J.A. Saunders, J.A.

The appellant was convicted of sexual assault, with the only live issue at trial being whether the Crown had proved the absence of the complainant's consent beyond a reasonable doubt. Appeal dismissed; the judge's reasons disclosed that he applied the reasonable doubt standard to the evidence as a whole; although the reasons for judgment were very brief and open to criticism, they did not preclude meaningful appellate review. The test for legal error in a judge alone case is not the same as would apply to a judge's charge to a jury on the issue of reasonable doubt. It was not an error for the judge to assess the credibility of the appellant in relation to that of the complainant as long as he went on to take the next step, as he did in his 'short-hand reference' to the evidence.

c_2004nsca135.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Burnac Corporation v. United Dominion Industries Corporation, 2007 NSSC 40 Date: 20070208 Docket: SH 160320 Registry: Halifax Between: Burnac Corporation v. United Dominion Industries Corporation Defendant Judge: The Honourable Justice C. Richard Coughlan Heard: October 2-4, 10-12, 16-19, 23-25, 30-31, November 1-2, 6-8, 14-16, 2006, in Halifax, Nova Scotia Decision February 8, 2007 Counsel: Aidan J. Meade and Kevin D. Gibson (Genevieve Dawson on October 10-11, 2006 only), for the Plaintiff Michael J. Wood, Q.C., Ronald S. Noseworthy, Q.C. and Cory Withrow, for the Defendant Coughlan, J.: [1] The roof of the Sears store at the Village Mall in St. John’s, Newfoundland collapsed February 9, 1987. Then, in January, 1995, the roof of the Centrac warehouse in Mount Pearl, Newfoundland collapsed. Both buildings were constructed with open web steel joists fabricated by Robb Engineering of Amherst, Nova Scotia. The Association of Professional Engineers and Geoscientists of Newfoundland notified professional engineering associations across Canada there could be structural problem with open web steel joists fabricated by Robb Engineering between 1970 1985. The Association of Professional Engineers of Nova Scotia provided the Province of Nova Scotia with list of contracts in Nova Scotia that contained Robb Engineering open web steel joists. The Nova Scotia Department of Housing and Municipal Affairs wrote owners of buildings containing Robb joists, recommending open web steel joists fabricated by Robb Engineering between 1963 and 1985 be inspected by qualified professional engineer. [2] The owners of the Mayflower Mall, Sydney, Nova Scotia received the notification. Consulting engineers were engaged to verify the presence of Robb joists in the Mall. An inspection was carried out and report prepared. [3] The report stated that of 1,900 open web steel joists which could be inspected, total of 199 or 10.5% were found to have at least one panel point with broken or missing weld. The average for buildings inspected in Nova Scotia containing Robb joists was 2.28%. The evidence of experts for all parties is cracked or missing weld is danger and must be repaired. The report set out proposed remediation scheme, which was the same as implemented by the Nova Scotia Department of Transportation and Public Works for the Government’s own buildings. The owners, concerned with safety issues arising from the report, followed the consultants’ recommendation and undertook the remediation of the Mall. [4] Burnac Corporation, the owner of the Mayflower Mall, claimed against United Dominion Industries Corporation, of which Robb Engineering was a division, for the cost of the inspection and remediation of the Mall. United Dominion Industries says the actual repairs to the welding and webs of the open web steel joists were necessary, but the reinforcing of the joists undertaken in the remediation was not necessary to repair defects to the joists and mitigate the danger. [5] The issues for the Court are: Were there defects in the open web steel joists manufactured by the defendant? Was there real and substantial danger to the occupants of the Mall? Was that danger caused by the defendant’s negligence? Were the repairs and remediation undertaken by Burnac required to alleviate the danger? [6] The Mayflower Mall was constructed in 1979. United Dominion Industries Corporation, formerly United Dominion Bridge Company Limited, admits it fabricated, transported and erected the open web steel joists in the Mayflower Mall. [7] Robb Engineering, wholly owned subsidiary of United Dominion Bridge Company Limited (Dominion Bridge), was located in Amherst, Nova Scotia. Robb had various divisions. One division was engaged in the fabrication of open web steel joists. The joists at the Mayflower Mall were fabricated by Robb Engineering. [8] Carl Freeman Smith was Welding Supervisor at Robb Engineering from approximately 1967/1968 until he retired in 1985. He supervised welding in all Robb Engineering divisions. Approximately 25% of the welding at Robb Engineering was on the joist line. As general rule, less experienced welders worked on the joist line. There were welding data sheets prepared by the Engineering Department to provide welders with information concerning particular weld welder was to make, including type of joint, number of passes to be made and type of electrode to be used. Mr. Smith kept the data sheets on the walls of his office so the welders could see them. There were no welding data sheets for joists. [9] The joists had top and bottom chords, each chord had two lengths of steel plate on angles called chord members, with round bars between them called web members. The web members connected the top and bottom chords. The web members were welded to the chord members. Where the web and chord members are connected by welds are called joints, panel points or nodes. Joists were of various lengths. [10] Joists were assembled in jig. The top and bottom chords on one side were placed in the jig. Then the web rods were put in place and tack welded. Next, the remaining top and bottom chord angles were put in place. The joist was clamped in the jig and flipped. The joist was then standing up. Two welders welded one side of the chord angles. One starting at the end of the joist and working toward the centre, the other starting at the centre and working toward the other end. When one side was finished, the joist was flipped and the other chord was welded. The welds used were flare beveled and puddle welds. [11] Once the welders were finished, the joists were put on trolley and went to be painted and dipped in tank of paint. There were no inspection of the joist between welding and painting. [12] There was no standard way to pile joists for inspection. The joists were in pile which allowed an inspector to see either the top or bottom chord, depending on how the joist was placed on the pile. What the inspector could not see was not inspected. The amount of work in the plant determined how much Mr. Smith inspected. If he was busy, he had no time to inspect joists. Mr. Smith said Norman Ellis was an inspector who he thought inspected joists once day. Mr. Ellis did inspections other than joist inspections. There was another person who did joist inspections, but Mr. Smith did not know how often he conducted inspections. Mr. Smith agreed on cross-examination there could be joists not inspected. [13] Michael John Pates was employed by Dominion Bridge from June, 1976 until September, 1986. metallurgical and welding engineer, he became welding engineer for Robb Engineering in May, 1978. Prior to that he had worked on the welding at Robb Engineering. Mr. Pates visited Robb Engineering about four or five times year, each visit lasting two days. Robb Engineering was one of Dominion Bridge’s smaller operations. [14] At Robb Engineering, the shielded metal arc welding process, also known as stick welding, was used in the fabrication of joists. [15] Mr. Pates thinks his first visit to Robb Engineering was on May 19-20, 1977. He observed problems with the welding of open web steel joists. The joists could not be inspected to determine if weld was acceptable as the welds were covered with slag. During welding, weld is in molten state. Slag floats to the surface and covers the weld. Slag should be removed. If slag is not removed, it hardens and makes it impossible to inspect the weld. With slag present, one could not see if there was cracking or fusion problem with the weld. He had been told by his colleagues at Head Office there was problem with welding at Robb Engineering. [16] Following his visit, Mr. Pates wrote letter dated May 31, 1977, addressed to Mr. L. H. Naylor, Robb Engineering, Amherst, the subject of which was “visit re welding practice and procedure”, which stated in part: As you are aware, the situation regarding the control of the quality of welding during the fabrication of joists is not satisfactory. This is due, in part, to the non-removal of slag after shielded metal-arc welding of the flare-groove and puddle welds, which makes it virtually impossible to inspect for weld length and freedom from defects. Whilst appreciating that program does exist to provide an ongoing quality surveillance, this clearly cannot be performed successfully on welds which are masked by slag deposits. Further areas of concern are: 1) The control over throat sizes of flare-groove joints when no approved weld data sheets exist designating welding parameters proven to have produced deposits meeting the design throat thickness. 2) The use of Jetweld #3 electrodes which are not certified by the Canadian Welding Bureau. Successful joints could be established on the basis of direct throat measurements on sectioned welds deposited under controlled welding conditions. Acceptable welding parameters could then be submitted to the Canadian Welding Bureau for approval. [17] Mr. Pates was trying to get the joist line under control. [18] He then visited the Robb Engineering facility on September 29-30, 1977. The welding in the joist line was the same as during his previous visit. [19] The joist line remained problem during Mr. Pates’ visit to the Robb Engineering plant on January 24-25, 1978. There was no control over how the welds were made. [20] Mr. Pates made further visit to Robb Engineering on April 18-19, 1978. meeting was held, attended by Mr. Pates, Lionel Naylor of Robb Engineering, Carl Smith, Robb Welding Supervisor, R. Fisher and R. Golec, Seniors Managers of Robb. Mr. Pates summarized the discussions concerning the joist line in letter to Mr. Naylor dated April 24, 1978 as follows: Joist Line The comments of our initial meeting held in the earlier part of this year were pursued further. In addition to ourselves, R. Golec, S. Fisher and C. Smith were present during these discussions. Various aspects relating to the joist fabrication were discussed and it was agreed that welding consumables used on the line must be brought in line with code requirements. It was decided that the GMAW process was the best candidate, and that Robb should forward flare groove throat sizes, lengths, etc. which would satisfy the latest addition of W59.1 where specific reference to flare groove joints is made (see attached copy). Once this design information is available then work on GMAW deposits, using representative joints, may proceed in the laboratory. The distortion problem, where some joist (≻40') were experiencing sweep in the top chord and an “S” type sweep in the bottom chord was traced back to the rigidity of the jig being used in the shop. This jig needs to be redesigned in order to maintain chord tolerances. [21] Mr. Pates again visited Robb Engineering June 14-15, 1978. At that time the joist line was not in operation due to lack of work. Mr. Pates stated that from his recollection while other areas of the Robb Engineering facility were not bad, the joist area felt like it was off limits. It was dirty. [22] There was an ongoing attempt to improve the welding process on the joist line. joist line program was established to investigate changing the welding process to bring the line within the National Building Code without the need to “deslag” the welds. [23] Tests were carried out and report entitled “Joist Assemblies Robb Engineering. An Investigation into Present and Alternate Welding Processes” dated July, 1979 was prepared. Mr. Pates was an author of the report. The purpose of the test and report was to determine if an alternate welding process could be used to meet the Code without the need to deslag. Samples of production welds from Robb Engineering were sectioned and examined. Weld metal cracks were evident in the samples examined. The report concluded, strict quality control program needed to be established at Robb Engineering. Such program was not implemented during Mr. Pates’ involvement with Robb Engineering. The report recommended all joists be deslagged to allow for routine inspection for weld quality and weld length. Mr. Pates stated the report raised concerns in his mind, but he was told by Messrs. Fisher and Golec there was no need to deslag as there had never been failure, load tests had been performed and joists performed satisfactorily. Prior to the report, no deslagging was allowed. [24] During visit by Mr. Pates to Robb Engineering on September 25-26, 1979, presentation was made to Robb senior management dealing with joist line problems. It was decided action was to be taken to improve the quality of welding on joists. In letter to Mr. L. Naylor dated October 2, 1979, Mr. Pates set out the course of action agreed upon: Further tests on production joists also showed that many of the end joints, where the larger diameter bars had been used, contained similar linear defects. After discussions with yourself and Carl Smith, presentation was made to R. Golec, R. Crossman and S. Fisher. The outcome of this meeting concluded that, effective immediately, the following steps would be undertaken to bring the welding of joists to quality acceptable to Engineering. 1. Electrodes will be changed to E7014 and all craters will be filled. 2. The three critical end joints will be deslagged and inspected on all joists. These will be subsequently inspected by MPI until we have the assurance that the cracking problem has been overcome. 3. One joist per shift will be deslagged completely and inspected by Carl Smith. MPI inspection may be performed at Carl’s disgression (sic). Additionally, the following work will be performed: a) Carl will carry out tests to find the best parameters for flare groove joints. Data sheets will be made up for these and welders will carry out trial welds which will be sectioned at the centre and end to assure that penetration is achieved. Welders will carry out such tests at regular intervals; this approach to checking the quality of their work will mean that it becomes unnecessary to section production joists at this time. b) Engineering would look into the possibility of increasing the bend radius of the webs to allow for less downhill welding. c) Management indicated that they would be looking into the procurement of new bending equipment in the coming year. This would be extremely beneficial in reducing bad fit up and would therefore increase weld quality. d) All joists incorporating 1" diameter and 15/16" diameter bars at the critical end joints, and which are now lying in the yard, will have these welds repaired according to the procedure agreed between Carl and myself. e) document incorporating welding data sheets and correct welding and inspection procedures will be drawn up by ourselves to act as control document for the short span joist line. The meeting concluded that the situation regarding inspection should be reviewed with time once the weld quality had improved to our satisfaction. It is my opinion, however, that the decisions made at the meeting represent minimum inspection and that we should maintain such system for all future joists. During my visit, we also discussed the puddle joints on the joist line, and it was thought necessary that we should carry out some mechanical testing of typical joists in the R&D Centre at Lachine. enclose copy of Report No. L106/1/73 which describes the testing of flare groove joints and this may be of help to you in the design of relevant jig. [25] Testifying about the above items, Carl Smith stated with regard to item numbered one, the electrode was changed and some of the craters filled. With regard to item numbered two, the three end joints were deslagged and inspected on all joists. The MPI inspection was carried out. With regard to item numbered three, one joist was completely deslagged and inspected by Mr. Smith on few occasions. Due to his workload, Mr. Smith was unable to say how many times he conducted such an inspection. Mr. Smith testified the work set out in items a) and e) was not done. Items b), c) and d) were done and, with regard to item d), insufficient welds on the end joints were found and the welds were increased. [26] Mr. Smith was aware Robb Engineering advertised their joists as complying with CSA (Canadian Standards Association) W59 Standard (Welded Steel Construction (Metal Arc Welding)). He was aware the joists were not fabricated in accordance with it. He was told by Robb management they could not make joists in compliance with W59 and stay competitive. [27] Mr. Pates complained that contrary to CSA W47.1 (Certification of Companies for Fusion Welding of Steel Structures), Carl Smith had too many duties. The Standard required welding supervisor be employed full-time in that position. [28] Mr. Pates stated he had concerns joist welding may be danger to the public, but did not inform his supervisors of his view. Mr. Pates tried for over two years to have data sheets for joist welding produced. Although Mr. Smith knew CSA W59 required data sheets be prepared, welding data sheets for joists were not prepared. [29] An Advisory was issued by the Department of Housing and Municipal Affairs and sent to owners of buildings thought to be constructed with Robb open web steel joists. As result of the Advisory, the owners of the Mayflower Mall commissioned an inspection of the Mall. CBCL Limited, assisted by fga Consulting Engineers Limited, was retained to conduct the inspection. The inspection took place from September to November, 1998. To limit the disruption of Mall operations, for the most part the inspections took place between 11:00 p.m. and 6:00 or 7:00 a.m. James Bradley Kennedy, civil engineer employed by CBCL Limited, was lead engineer on the project and involved in preparing the inspection report. The purpose of the inspection was to inspect the joists in the Mall and look for cracked, broken or missing welds. Mr. Kennedy also inspected some joists. Most of the joist inspections were conducted by Darrin Frederick McLean, professional engineer employed in the Sydney office of CBCL, and by Kevin James Pinhorn, Level II welding inspector, certified by the Canadian Welding Bureau. Mr. Pinhorn was also certified welder and pipe fitter. Mr. Pinhorn was employed by fga Consulting to work on the project with CBCL. Each of Messrs. McLean and Pinhorn testified he inspected about 50% of the joists in the Mall. An inspection sheet was prepared for each weld inspected. The inspectors were looking for bent web and chord members and missing or cracked welds. [30] The same procedure was used by all inspectors. The bottom chord of the joists was approximately two feet above the 14 foot ceiling, with the top chord 26 to 30 inches above the bottom chord. Ceiling tiles were removed and the inspectors climbed stepladders which were as high as 14 feet. As there was no light above the ceiling tile, flashlights were used. Inspectors also used prybars, approximately 18 inches in length. The inspectors looked at joint to determine if weld was present. If weld was present, the prybar was placed between the web and chord member and pressure applied to determine if there was separation. If there was movement, that indicated cracked weld. If the weld was sound, nothing happened. [31] All accessible panel points on all joists were inspected. There were difficulties in conducting the inspections. Mr. Kennedy testified some of the joists were inaccessible and could not be inspected. Some of the welds on the top chord could not be seen as the deck of the Mall’s metal roof was sitting on the top chord. Where possible, on the top chord, the top of the weld was inspected with the aid of small inspection mirror. [32] Mr. McLean testified not all welds were visually accessible because of duct work, piping or where the corrugated metal roof rested on the top of the joist. In addition to resting on the top of the joist, the roof was spot welded to the joist. The joists were painted which affected their visibility. There were also cracks on the bottom chord not visible without using prybar. In general, it was difficult to see cracks on the top chord. The inspection mirror could not be used to examine welds covered by the roof deck. [33] Where the roof deck was attached to the top chord, the length and width of the weld could not be measured. The inspectors were not able to inspect all welds or joists, and some welds or joists were enclosed by drywall or duct work. [34] Mr. Pinhorn testified it was physically impossible to measure the length or width of welds on top chords as he could not get tape measure there. Where the roof deck rested on the top of the joist, he could not see welds. Where the roof deck was raised, he could use mirror. Not all areas of the joist could be accessed because of obstructions, such as gyprock, conduits and wiring. In those areas he could not see the welds. There was slag all over the joints on the bottom chords, as well as the ones he saw on the top chords. Where slag covered welds, he could not see the welds. [35] While Mr. Pinhorn was not asked to determine the quality of the welds, he observed weld quality was poor, with porosity, overlap and undercut present. He did not record all porosity, slag or undercut, but testified it was persistent. He described some of the welds as being as “thin as an eggshell”. [36] After inspection of the joists was completed, CBCL prepared report and fga Consulting commented on it. The report stated, “In general, welding quality was poor with weld failures and poor fit up noted throughout.” Of the 1,900 open web steel joists inspected, total of 199 or 10.5% were found to have at least one panel point with broken or missing weld. Also 84 joists were found to have one or more bent web members and 40 joists had one or more bent chord members. It was Mr. Kennedy’s opinion the majority of the bent members occurred during construction. One web member was missing and another was broken. The report recommended the remediation scheme implemented by the Nova Scotia Department of Transportation and Public Works be adopted for the Mayflower Mall. [37] Gary Follett, President of fga Consulting Engineers Limited, was qualified as an expert in welding engineering matters and structural engineering, entitled to give opinion evidence in those areas. Mr. Follett is professional engineer. He has extensive experience with Robb joists. [38] After the partial collapse of the roof at the Village Mall, fga Consulting was hired to inspect the part of the Mall that had not collapsed. The company became more involved until the Mall owners relied solely on fga Consulting concerning engineering matters respecting the collapse. Fga Consulting carried out detailed inspection. The company found cracked joists and welding errors. Welds full of porosity and with very little penetration were observed. There were lot of faults with the welding. He saw puddle welds from the Village Mall which were little more than blob of metal on an end of rod. [39] In January, 1995, the Centrac roof collapsed. Fga Consulting was hired to assist with the inspection and advise regarding welding matters. The quality of the welds inspected was poor. As Mr. Follett said, there were more problems than normal, even for building constructed with Robb joists. [40] Mr. Follett was appointed to the Open Web Steel Joist Review Committee for the Province of Newfoundland. The purpose of the Committee was to determine how the problem concerning open web steel joists was to be addressed. The Committee visited every Newfoundland government building containing open web steel joists. If building contained Robb open web steel joists, it was inspected and remediation program developed. [41] Subsequently, Mr. Follett was hired as consultant to the Open Web Steel Joist Working Committee established by the Province of Nova Scotia. The Committee’s mandate was to assess the Robb open web steel joist issue, determine if problem existed in Nova Scotia and recommend the appropriate action to correct any problems. report dated July 8, 1998 titled “Open Web Steel Joist Investigation Interim Remediation Report” was produced. Mr. Follett authored the report. The report dealt with the proposed remediation of buildings owned by the Province of Nova Scotia constructed with Robb open web steel joists. [42] The inspection of public buildings in Nova Scotia constructed with open web steel joists fabricated by Robb Engineering resulted in the determination 2.28% of joists had at least one failed joint, that is, at least one cracked or non-welded joint. The comparable failure rate in Newfoundland was 8.3%. [43] The report stated there are in excess of 22,000 joists in public buildings containing more than 65,000 panel points or joints. It was assumed every second or third top chord panel point was inaccessible for inspection due to the down flute of the building’s roof and, therefore, between 113,000 and 168,000 joints could not be inspected. Additional joints were inaccessible due to the location of mechanical equipment. [44] Section 4.0 of the Nova Scotia report contains discussion of inspection results and states in part: The theory of brittle flare bevel welds contributing to the weld cracks is supported by the random nature of the location of these cracks. Figure seems to imply that the cracks have occurred throughout the joist as opposed to the more highly stressed location which in turn seem to suggest that many of the cracks are not service related. Joists in length categories and (10 to 14 m) have more cracks on percentage basis. Initially this would appear to be service related. Such may not be the case, these failures may not be related to the susceptibility of longer joists to cracking during handling, or to the fact that the longer joists have larger members, which means faster cooling rates and thus higher hardness. Once again further investigation to determine the mode of failure would be advisable. Figure certainly does indicate marked increase in failures above length category 4. This suggests additional remediation may be advisable around the or 10 length and above. [45] remediation scheme was proposed with buildings categorized on the basis of the percentage failure and age. In buildings that had satisfactorily performed for twenty years and had failure rate of 1% or less, only failed welds or members would be repaired. The remediation scheme was divided into various levels as follows: Proposed Joist Remediation (Roof Floor) Category Description Suggested Remediation (Prel.) Level Includes any joist: 1) with span exceeding 9m, or 2) in snow build up area (ie. high low roofs) or 3) in high floor load areas (i.e. libraries, stockroom, etc.) or 4) in an area with excessive failures, or 5) that has more than two (2) failed joints. 1) Carry out 100% inspection and make necessary repairs to joints. 2) Install spacers in compression chords where force is ≥50% of the maximum force. 3) Reinforce members/panel points on each end until resultant shear force ≥50% of end value. Level II Includes any joist: 1) with span between 4m and 9m inclusive, and 2) that is in non-snow build up area. 1) Carry out 100% inspection and made necessary repairs to joints, and 2) Install spacers in compression chord where force is ≥50% of the maximum force. Level III Includes any joist: 1) with span less than 4, and 2) that is in non-snow build up area. 1) Carry out 100% inspection and make repairs. Level IV Includes any roof joist: 1) designed to 0.6 snow load factor and, 2) with failures or obvious deficiencies. Note for joist designed to 0. with no failures or obvious deterioration, treat at Level I, II, or III above. 1) Analyse and upgrade to 0.8 snow load factor Note: 100% inspection for joint failures must be carried out for all buildings, regardless of category. [46] During remediation, Mr. Follett visited the Mayflower Mall. He looked at existing welds, as well as the remediation. The existing welds were typical of what he saw elsewhere. He saw undercut, porosity, slag not removed, cracked welds and missing welds. There was inconsistent profile of welds present. The weld would meet requirements and then get narrower. He observed craters. Mr. Follett did not see any evidence of base metal flaws or overstressing at the Mall. [47] Mr. Follett said, in construction, one first turns to the National Building Code, which is Code of minimum requirements for buildings or structures. An engineer should design to the Code. company should build to the Code. The Code requires conformation to CSA S16.1 (“Steel Structures for Buildings”), which requires welding design and practice to conform to CSA W59 (“Welded Steel Construction”) and that the welding be carried out by company certified to CSA W47.1 (“Certification of Companies for Fusion, Welding of Steel Structures”). This was summarized by Mr. Follett in his report “Open Web Steel Joist Remediation, Mayflower Mall, Sydney, Nova Scotia” dated January, 2004 as follows: Essentially, for structural steel units such as OWSJ’s to be termed “safe” it should have at least been welded by company certified to CSA W47.1 who should have followed welding procedures which were approved by the Canadian Welding Bureau (CWB) as the W47.l Standard administrator. Through the approval process for these procedures, the company should have verified that competent weld could be produced. The certified company should have then used welders who had current certificates of competency, certifying that they were capable of completing the required weld. This should have been done under the supervision of welding supervisor who was accepted by CWB as possessing sufficient knowledge and experience as stipulated by CSA W47.1. [48] The flare beveled welds and puddle welds used in Robb joists were not pre-qualified. If fabricator intended to produce weld not pre-qualified by the Canadian Welding Bureau, the following procedure should be followed. The fabricator first should satisfy itself it could consistently develop weld to comply with the Standard and design. Then the fabricator would prepare test of the weld witnessed by representative of the Canadian Welding Bureau. The Bureau, in turn, would test the weld to determine if the procedure was valid and whether the welder could receive “ticket” to make that weld for that particular company. Subsequently, other welders would be tested by the Bureau to determine if they could receive “tickets” to make the weld. [49] Welding data sheets are prepared, which are, as Mr. Follett described them, instruction sheets as to how to make weld. They contain instructions to welders as to how to make particular weld. Mr. Follett testified the accepted procedure is to be consistently followed to ensure there were no cracks in roots of welds as, in the field, there is no non-destructive way of determining if there is crack in the root of weld. [50] Mr. Follett said joists with cracked and missing welds would not get out of the Robb plant if proper procedures were followed. He said it was shoddy practice. He did not consider the welding adequate, nor the Mayflower Mall safe. If weld was missing or cracked, it had no capacity. Mr. Follett said anyone can make mistake, but to have 19 joists containing joint not welded is astonishing. It calls into question the fabricator’s attention to quality. Anyone should see if weld is missing. 10.5% of joists with missing or broken weld, as at the Mayflower Mall, is monstrous number. [51] In the Mayflower Mall 1.6% of joists had three or more broken or missing welds. Many of the failures were not in the most stressed areas, which indicated to Mr. Follett cracks occurred as result of poor welding. Mr. Follett testified with Robb joists in general he noticed failures occurred in groups, with no apparent reason for the failure. The failures were random. [52] Mr. Follett testified if he knew the welds had been made by welders following approved procedures, properly qualified, with all checks in place, he could have confidence in the welding. The problem with Robb joists was he had information welders had failed welding tests, there were no approved procedures, non-standard weld was being produced without acceptance by the Canadian Welding Bureau. Measuring the length of welds could be valid approach to determine the strength or capacity of welds if you knew the fabricator followed approved procedures in making the welds. However, given Robb Engineering’s practices, he could not understand how measuring the outside of weld could give one confidence. Many of the welds he saw could have been measured, but were cracked. [53] Mr. Follett testified there were problems in inspecting joists. The roof deck of the Mayflower Mall rested on the top chord of the joists, which made much of the top chord inaccessible and impossible to inspect. He also testified it was near impossible to measure welds on the top chord. [54] The remediation program provided for placing spacers on the top chord of joists. In addition to connecting web members to chord angles, welds held chord angles together. The spacers were added as the engineers considered the welds inadequate to prevent lateral movement. [55] Commenting on the use of prybar to inspect welds, Mr. Follett said such little force is used it should not break weld. He said he would like to see the man who could take an 18 inch prybar, stand on top of ladder and apply enough force to break weld. He had never seen such man. [56] Emad Pasha, Director of Construction for Burnac Corporation, was involved with the Robb joist issue at the Mayflower Mall. He reviewed the Mayflower Mall joist inspection report. The company was concerned about safety issues arising from the report’s findings of joint failures four times higher than the Nova Scotia average. Safety was not to be compromised. He reviewed the remediation program. He was of the opinion the remediation recommended by the report should be implemented. Burnac should do what the Province was doing to their own buildings. Burnac authorized the recommended remediation. [57] Tender documents were prepared and the job was tendered through requested bids from companies with experience with Robb joists. Bids were received, but were considered high. The consultants made suggestions to reduce costs. Lower bids were received, but still considered high. The bidders were told the numbers were high and lower bids were received. The job was awarded to Metal World Incorporated. [58] CBCL and fga Consulting were involved in the remediation project. [59] George Byron Crocker Level II welding inspector, certified by the Canadian Welding Bureau was employed by fga Consulting in association with CBCL on the remediation project. He commenced work on the project in January, 2000. Mr. Crocker carried out inspections on joists which had been previously inaccessible, as well as joists after remediation was performed. When conducting an initial inspection, he visually inspected the chord when he could see it. He could not see all the welds on the bottom chord. Sometimes the welds were covered by slag or paint and he could not see whether the weld was cracked. Mr. Crocker applied pressure with prybar to determine if the weld was cracked. He used the prybar on both the top and bottom chords of the joists. It was harder on the top chord, as sometimes you could not apply enough pressure. He did not want to apply too much pressure on the top chord as he might break spot weld which attached the roof deck to the top chord, or bend the chord. Mr. Crocker testified he had never broken good weld with prybar. He described the welding at the Mayflower Mall as of poor quality throughout. There were missing welds. He saw burn through, undercut, overlap, porosity, crater cracks, unfilled craters, undersized welds and blobs of metal. [60] Dr. Ralph Edward Southward, professional engineer, President of Southward Consultants Limited, was qualified as an expert entitled to give opinion evidence in structural engineering and in welding engineering as that relates to welded steel construction, welding design, welding procedure and welding practices, and the quality and capacity of welds in construction, including open web steel joists. Dr. Southward was member of CSA W47.1 “Certification of Companies for Fusion Welding of Steel Structures” from 1979 until 1996, and member of CSA W59 “Welded Steel Construction (Metal Arc Welding)” since 1979. He has chaired CSA W59 since 1994. He has doctorate in structural engineering from Cambridge University. [61] Dr. Southward was retained to review the report “Mayflower Mall Joist Inspection” prepared by CBCL and fga Consulting, and comment on the reasonableness of the proposed remediation. He was also asked to comment on the original welding of Robb open web steel joists. [62] Dr. Southward testified there is unique welding system in Canada. Most countries are working toward our system. The National Building Code places obligations on companies. Quality in production is needed to ensure the public is safe. The public assumes buildings are safe. CSA W47 was written in 1947. It establishes the protocol in Canada for quality control in steel fabrication shops. The Standard requires engineers be involved in and take responsibility for the design and work of steel fabricators. To ensure proper procedures and designs are in place, CSA created the Canadian Welding Bureau to manage the Standard. Professional engineers take responsibility. The fabricator has to have full-time welding supervisor. In addition, welders have to pass Standard tests and be tested every two years. Welders are tested for the process, position of welding and type of welding. Welders have to be certified by the Bureau on each type of welding they do. Robb Engineering did shielded arc welding. There are standard welding configurations in the industry. Welders’ “tickets” for flare beveled welds are normally transferable from company to company if the welder changes jobs, but the Canadian Welding Bureau provides “tickets” for flare beveled welds in open web steel joists are not transferable. Canadian buildings generally have very high safety level. The fabricator does the engineering, supervision and ensures competent welders, all supervised by the Canadian Welding Bureau. [63] There are welds the Bureau has pre-qualified. There is an obligation on the fabricator to do the work properly. If the Standard is followed, one can assume welders could do proper job. fabricator is not restricted to using pre-qualified welds. If the fabricator wishes to use different joint or weld, it would have to prove it. The fabricator prepares procedure and test joint and submits it to the Canadian Welding Bureau. The Bureau reviews the procedure, tests the weld and determines if the weld is acceptable, and if so, qualifies the fabricator to make the weld. [64] About year after the roof of the Sears store in the Village Mall collapsed, Sears asked Dr. Southward to review information concerning the collapse. After reviewing the joists involved, he had real concerns about the welding at Robb Engineering. Then, after the Centrac collapse, Dr. Southward was asked to give his opinion of the welding of the open web steel joists used in the roof. What he saw outside the collapsed area at Centrex was consistent with what he observed at the Village Mall examples of what you do not do in welding. He could not rely on the quality of Robb joists when there are joists with missing or cracked welds. It is unheard of in Canada to have all these joists with missing or cracked welds. [65] Dr. Southward visited the Mayflower Mall in July, 1999. At the Mall, he observed missing welds and lack of fusion. For example, he saw puddled weld welded across two web rods with minimal or no welding to connect the angle on the left side, and there was no fusion between the web members and the right chord. He also observed poor fit-up of web members to the chord angles. Poor fit-up is concern. In the fabrication shop, the web members are pre-bent and brought to the welder. The web rods should be of fixed length. Therefore, if there is poor fit-up in one chord, there will be problem with poor fit-up in the other chord. With poor fit-up on the bottom chord, Dr. Southward has concern for the welding on the top chord. [66] The only practical way to inspect welds in open web steel joists is visually. Radiographic and ultrasonic methods of testing are not appropriate for welds in open web steel joists. In commenting on the possibility of determining the effective throat or capacity of weld by measuring the weld from the outside, Dr. Southward referred to figure 21 in Mr. Pates’ July, 1979 report “Joist Assemblies Robb Engineering. An Investigation into Present and Alternate Welding Processes”, in which there appears to be large gas pocket and crack at the root of the weld. There is no way to see that crack in the field. An outside measurement would not tell you the strength of the weld because of the defect in the root of the weld. It is difficult, virtually impossible, to examine welds non-destructively. [67] Both CSA S16 and CSA W59 require slag be removed from welds at the time the welds are made. Slag prevents the inspection of welds. [68] Dr. Southward testified cracks are not acceptable. The Standards do not allow for cracks to exist. crack means joint cannot carry load. One cannot rely on weld with crack in it. Cracks have to be corrected. missing or cracked weld effects the strength of welds. [69] Dr. Southward testified the Village Mall, Centrac and the Mayflower Mall had the same systematic problem. It is difficult to have any confidence in welds if quality control process allows joists shipped with missing or cracked welds it puts the rest of the welds in question. He could not answer the question as to what was the chance of failure if the welds in the Mayflower Mall were not reinforced. No one knew the extent of the lack of fusion at the Mayflower Mall. He could not rely on the quality of Robb joists because of the missing and cracked welds. Dr. Southward did not attempt to determine the capacity of welds at the Mall. [70] Considering the results of the Newfoundland “Open Web Steel Joists Load Testing and Inspection Program Final Report”, Dr. Southward concluded in his report: Since “broken” weld should not exist in properly designed and fabricated open web steel joist, these findings represented very real and substantial risk of collapse, and concern for the safety of the public. [71] In response to question as to what effect prybar may have on sound weld, Dr. Southward stated he did not think an inspector with an 18 inch prybar would generate enough force through his body weight and strength to fracture welds if they were sound welds of adequate size to do the job they were expected to do. [72] Dr. Southward accepted the remediation approach adopted for the Mayflower Mall. He said it was not practical to do rewelding on the top chords as it was hard to get at the chords. The remediation program was necessary. The Mall contained higher number of missing or cracked welds than the Nova Scotia average 10.5% versus 2.28%. Welds were covered with slag. Considering Robb Engineering’s welding procedures, there was no way to know if the welds had strength. There was no method available to test the strength of the welds that remained at the Mall. Just repairing the missing or cracked welds at the Mall was not sufficient to determine the joists were safe. To Dr. Southward, the remediation was matter of public safety, the joists had to be remediated to attempt to establish the reliability expected of Canadian buildings. It was necessary to ensure the remaining welds were all right. [73] With Level remediation for joists thirty feet or more in length, 25% of the joints at each end of the joists were to be reinforced and the missing and cracked welds repaired. Engineers made the decision, not every joint had to be reinforced. At the Mayflower Mall slightly less than 50% of joists were reinforced. Dr. Southward testified it would have been easier to replace the joists, but the decision was made the remediation would protect the public. [74] Spacers were also placed in the top chord in the Level remediation. It was not practical to reweld the cracked welds on the top chord with the roof deck sitting on the top chord. It was not acceptable to weld over cracked weld. W59 is clear the crack is to be removed. The chord members of Robb joists were designed so as not to require spacers. Spacers were included in the remediation program to provide for missing welds or welds that may crack. Spacers were used to prevent chord members from buckling. [75] Dr. Southward said the testing at Memorial University reported in “Open Web Steel Joists Load Testing and Inspection Program Final Report” only provided information about the welds tested. He did not place lot of weight on the test. Nothing in the report indicated remediation was unnecessary. The purpose of the testing was to give confidence in the remediation scheme. [76] In the 2003 edition of CSA W59, flare beveled welds are now pre-qualified for applications other than open web steel joists. There was not any discussion to extend flare beveled welds’ pre-qualification to open web steel joists. In his report, Dr. Southward sets out his conclusions as follows: 1. The rate of failure of Robb Engineering open web steel joists indicated something was fundamentally wrong. 2. Since “broken” weld should not exist in properly designed and fabricated open web steel joist, these findings represented very real and substantial risk of collapse, and concern for the safety of the public. 3. The problem with Robb Engineering open web steel joist was the welding practices and lack of quality control associated with the fabrication of their joists. Robb Engineering joists did not meet the requirements of CSA Standards S16, W47 and W59. 4. The Mayflower Mall, located at 800 Grand Lake Road in Sydney, Nova Scotia was identified by Robb Engineering as being constructed using their open web steel joists. 5. An inspection of the welding of the open web steel joists in the Mayflower Mall indicated the welding was of greater concern than the welding typically found on other Robb Engineering joists in Nova Scotia. 6. For public safety, the issue of the welding of the Robb Engineering joists at the Mayflower Mall had to be addressed. 7. In our opinion, the remediation program devised for the Mayflower Mall was necessary, and justified, because of the welding practices of Robb Engineering. 8. The remediation program was based on method of repair that was suitable for joists that had already been installed in buildings. The program recognized the joists had existed for some time, and categorised the level of remediation required relative to the risks associated with the potential failure of each joist. [emphasis in original] [77] Dr. David James Laurie Kennedy, professional engineer and professor of engineering since 1956, was qualified as an expert entitled to give opinion evidence in structural engineering and in the research and testing of structural components and welded connections, as well as the design and investigation of steel structures including welded connections in open web steel joists. Dr. Kennedy has doctorate from the University of Illinois in structural engineering. He was member of CSA S16 “Steel Structures for Buildings” from 1962 to 2001, and Chairman of S16 from 1968 until 2001. Dr. Kennedy developed strong interest in steel structures in 1960 and did fundamental work on open web steel joists in 1965. Besides his teaching duties, Dr. Kennedy has been engaged in consulting engineering. [78] Dr. Kennedy stated he was not welding engineer and he did not assess welding practices or procedures in his consulting practice. He agreed Dr. Southward was the expert for W47 and W59. [79] Dr. Kennedy had been involved with Robb’s joist issue since the late 1980's. His involvement included testifying in the trial arising from the Centrac collapse. He was also involved with the Village Mall, the Mall in Summerside and the North Sydney Mall. He has not tested Robb joist, nor Robb flare beveled welds or puddle welds. [80] Dr. Kennedy visited the Mayflower Mall on July 6, 1999 with Greg Saunders of SGE Acres and Joseph Schneider, former employee of Dominion Bridge. Prior to the visit, Dr. Kennedy had copy of the inspection report prepared by CBCL and fga Consulting. The purpose of the visit was to determine if they could corroborate the results of the CBCL/fga Consulting inspection and determine how they could participate in the remediation program, if needed. Messers. Schneider and Saunders visited the Mall and inspected joists prior to Dr. Kennedy’s arrival. Dr. Kennedy read notes prepared by Mr. Schneider which corroborated the CBCL/fga Consulting inspection report. Dr. Kennedy wanted to measure the size of the flare beveled weld and puddle welds, and look at the Mall’s roof. He was on the roof about one hour, but his observations there did not play an important part in his opinion. Using small measuring tape, approximately four millimetres wide, and calibrated calipers, Dr. Kennedy looked at seven joists. He did not inspect all panel points or joints on any joist. None of his measurements were made on the top chord of any joist. None of his measurements were made at the end of joist. Dr. Kennedy’s opinion was the capacity of welds could be determined by measuring the face length and width of welds. [81] Dr. Kennedy testified missing welds, broken welds or damaged end joints are gross defects and constitute danger in building. They must be repaired, he said. In an article he wrote, “Evaluation of structural weld defects”, Dr. Kennedy stated: Cracks. Perhaps of all the defects, cracks are the most serious and under no circumstances should such defects be tolerated. ... Careful control must be provided over welding procedures to prevent cracking in, for example, the case of making welds between heavy parts that are severely restrained. ... Under almost any condition of loading the strength of structural member or welded joint is likely to be reduced substantially by the presence of even very small crack. ... Cracks can be prevented by conforming to proper welding procedures. [82] Dr. Kennedy did not know if the welds at the Mayflower Mall were filled flush. Welds transfer shear forces and hold chord angles together in the top chord. The joints he measured at the Mayflower Mall was very small sample. The question was, what load can Robb joist carry, and Dr. Kennedy said he had lot of data from the Newfoundland report, “Open Web Steel Joists Load Testing and Inspection Program Final Report”. [83] The top chords of joists were more difficult to examine than bottom chords as the roof deck was welded to the top chord. Dr. Kennedy testified it was problem to determine if weld was of sufficient size in the field. On cross-examination, Dr. Kennedy reluctantly agreed you cannot physically measure length and width of welds on top chords. He gave the following evidence: Q. Now if someone wants to measure ... sorry, someone wants to calculate the capacity of weld, you need to measure how much weld is present? A. That is correct. Q. And you need some device to measure, obviously? A. That’s correct. Q. And you used measuring tape to measure lengths ... A. That’s correct. Q. ... in the Mayflower Mall? And you say you used calipers to measure the face width? A. That’s correct. Q. And when measuring face widths, you have to measure number of locations along the length of the weld if the width is not constant? A. That is correct. Q. And then you ... you’d add them all up and average them? But ... my friend walked into that last week. That’s basically what you do? A. That’s correct. You measure them at number of locations when the ... it appears that there’s visible variation in the width. Q. Now for the top chord, Dr. Kennedy, you’d need flashlight to see up there? Q. And you need your tape measure to measure? A. But did not measure any top chord welds. Q. Fair enough. understand that. Q. You’d also need mirror? A. That would be help, yes. Q. Because you can’t see the top of the welds from the top chord because of the presence of the roof deck? A. That’s correct. Q. You can’t get your head up there? Q. So in order to measure let’s say flared bevel weld that’s located in an up flute ... A. Yes. Q. ... of corrugated deck, you’d be at the top of your ladder just about? A. That’s correct. Q. And you have flashlight in one hand? A. I’m going to have three hands here pretty soon. Q. You ... you see where I’m going, Dr. Kennedy. Q. So you’ve got three hands and ... but most of us are short one. We got problem there, don’t we? Correct? A. didn’t ... and didn’t measure any top chord welds. ... acknowledge that, you didn’t measure any top chords. Q. So you’ve got your flashlight in one hand, your mirror in the other hand, and your calipers ... we’re missing hand to do that or ... or the tape measure, whichever, correct? A. Yes. Q. Now, if the ... of course, if the down flute is on top of weld, you can’t get up there to measure anything anyway, can you? A. If ... the down flutes are ... are not as ... harmful is not the right word ... as they’ve been made out to be, in my opinion. Let’s take the flare beveled groove weld that we’re talking about. It goes around the corner. The corner is quite gradual corner. It starts here, goes up, around and down. can still look at the ends. agree with you that cannot get proper estimate of the width of the weld, but can see both ends. Q. So you’d have to estimate the length of the weld? A. You can ... yes, you’d ... you have to estimate the length. You can make mark on the rod at right angles to its length at this end and at that end, and then get that length from ... Q. Okay. A. ... from the inside of the rod. Making allowance for the thickness of the rod, the dam of the rod and you have the length. It is more difficult. Q. Okay, so. Yeah.. Would you agree that it’s ... you cannot practically measure face widths and lengths at the top chord? A. It’s more difficult ... difficult ... It’s ... A. ... and ... Q. It’s very difficult. For example, how do you get your caliper up there to measure the face width? A. You ... you can’t get the caliper, only on the end. And we’ve discussed that issue already. Q. Yeah. So if there are variations in the width, you’re going to be in some trouble with the measurements of the face width. A. So what you do is you say, all of these flare beveled groove welds were made in the same manner. They were made with the welder standing over the joist and looking down and going wooooozzzzz zzzzzzzzz, and then the joist is flipped over and those welds that he just did are now the bottom chord welds, and now we do the top chord welds zzzzzzzzzz zzzzz. So knowing the sequence of welding and measuring the bottom chord welds, it is not very difficult to draw the conclusion that top chord welds are like bottom chord welds, and if can make some measurements on the bottom chord welds is you ... have grasp of the top chord welds. Q. Okay. Coming back to my question though, it’s not practical to actually measure the top chord welds. You’ve just described as ... ... way of estimating the top chord welds, but you cannot practically measure them, can you? A. Well, I’ll ... I’ll say it again. can look at the ends of the welds, and then I’m using my knowledge of the variation in the width of such flare beveled groove welds to say, is the measurement at this end and that end likely indicator of the average width of the weld face. Q. My question is very simple, Dr. Kennedy. A. And thought my answer was. Q. You can’t physically measure them at the top chord the whole weld? A. That is correct. [emphasis added] [84] Dr. Kennedy said if an engineer is looking at any problem, he or she should obtain all information available, for example, if one is looking at Robb joists, the National Building Code, CSA S16, snow data and the Newfoundland testing report. He did not review Mr. Follett’s report, Dr. Southward’s report or the plaintiff’s List of Documents prior to preparing his report. [85] Dr. Kennedy placed great deal of emphasis on the testing done at Memorial University. He said the Newfoundland report shows the reinforcing done at the Mayflower Mall was unnecessary. In the report at p. 31, s. 3.5.3, the following statement is made: The open web steel joists were of two distinct levels of quality. The joists that were obtained from Holy Cross School contained better welds than those obtained from the Mall. The joists from the Mall, however, had many repairs to connections to make them suitable for testing. [86] Dr. Kennedy, who was not present for the testing in Newfoundland, was not prepared to accept that the joists tested were of two distinct levels of quality. He agreed the joists were lying on test bed when tested, with access to all panel points and chords for inspection and repair. He also agreed the rates of broken and missing welds varied from building to building in Newfoundland. Most of the joists tested in the Newfoundland report were repaired prior to testing. Dr. Kennedy agreed fair amount of repairs were made in accordance with W59 and the welds, when tested, were no longer Robb welds. [87] In his report, Dr. Kennedy did two sets of calculations concerning the strength of welds in the Mayflower Mall. Table III was based on factors only added to CSA S16 in 2004, and the equations were not available at the time of the remediation of the Mayflower Mall. The second calculations in Table IV used older factored resistance to calculate effective throat. On cross-examination, Dr. Kennedy agreed the calculations in Table IV were incorrect. [88] Dr. Kennedy testified crater cracks do not propagate in statically loaded structures such as the Mayflower Mall. He stated open web steel joists are designed with redundancies built in, that is, different ways to carry load. In dealing with redundancies in his report, Dr. Kennedy stated at p. 3: These three redundant paths for carrying load exist but are not relied upon in the basic design and fabrication. Neither are they used to avoid necessary repair. But, with the redundancies, an isolated or unknown defect in all probability would not lead to collapse. ...” [emphasis added] [89] Having reviewed the Newfoundland report, Dr. Kennedy testified the puddle welds were fantastic and the flare beveled welds doing their job. In dealing with the Robb joist problem, he said he would ask himself what he has to do to repair the joists to prevent failure. He would repair defects. He would either measure the welds or, on the top chord, use prybar to determine the strength of welds. His opinion is the scheme devised should be the minimum which would allow the joists to do their job, that is, repair major defects. [90] In his report, Dr. Kennedy came to the conclusion 43% of the broken welds at the Mayflower Mall were broken during the course of the inspection by CBCL and fga Consulting. [91] Dr. Kennedy’s opinion was the Level remediation which required reinforcing of 25% of the joists at each end was over and beyond what was required for the structural sufficiency of the joist. The Newfoundland report showed this reinforcing was unnecessary. In the tests in Newfoundland, all welds carried the loads they had to carry. The reinforcing of welds at the ends of joists would not affect welds at mid-span. The puddle welds demonstrated that they carried load in badly damaged situations. Dr. Kennedy was of the opinion the spacers provided for Level remediation were unnecessary. The spacers have nothing to do with transferring shear from chord to web members, but are to prevent lateral buckling. The Robb joists were engineered not to require spacers. If there was broken weld, it should be identified during the inspection. [92] Dr. Kennedy’s conclusions concerning the Mayflower Mall are set out in his report as follows: Summary and Conclusions 1. CBCL and FGA carried out close to 100% inspection of the joists of Mayflower Mall in 1998 which revealed miscellany of defects. 2. At the time of the inspection the roof structure had withstood “the test of time” for about 20 years. 3. limited inspection of the joists by Saunders, Schneider and Kennedy as reported herein indicated that about 43% of the welds reported as broken by CBCL and FGA were broken by excessive prying forces in the attempt to determine which welds were cracked, broken or missing. Damage seven inelastic deformations in the chord angles provides evidence that the prying forces were excessive. 4. Field measurements of the weld face width and length reported herein indicate that the flare bevel groove welds have calculated shear strengths greater than required to transfer the maximum force in web rods to the chord angles. There is no evidence in the CBCL and FGA report that any attempt was made to determine the throat areas of welds and thus to assess or estimate their strengths. 5. The “Newfoundland” report contains two significant series of tests that demonstrate (a) joists with the minimum level of repairs as given by CBCL and FGA carried loads greater than the factored load level and are therefore structurally sufficient and (b) joists with puddle weld severely damaged including the most critical puddle weld at panel point were also structurally sufficient. 6. Since CSA Standard S16.1-1974 came into effect, the capacity of the top chord of Robb joists in their RF series has been based on skew axis buckling of the individual angles and therefore no spacers are needed. They are irrelevant. 7. CBCL and FGA recommend three levels of remedial work. The least extensive, Level III consists of 100% inspection together with repairs to failed joints and bent members. The intermediate Level, Level II, in addition, requires top chord spacers to be installed in accordance with CSA S16.1-94. Much more work is required for highest Level with significant reinforcement of members and panel points over about one-half of the joist span. We consider this remediation scheme based on that proposed in the Newfoundland Report to be inconsistent with the favourable joist strength test results. 8. Based on the two significant series of joist strength tests in the “Newfoundland” Report and corroborated by weld face and length measurement, we opine that the necessary and sufficient remedial work to bring all joists to the desired state of structural sufficiency comprises, following 100% inspection, repair of failed welds and straightening of bent compression members. [93] Stig Rolf Skarborn, professional engineer, President of Skarborn Engineering Limited, was qualified as an expert entitled to give opinion evidence in structural engineering and in welding engineering as that relates to welded steel construction, welding design, welding procedure and welding practices, and the quality and capacity of welds in construction, including open web steel joists. [94] Mr. Skarborn is also Level III welding inspector and is the retained welding engineer for number of companies. His firm was retained by the Department of Supply and Services of New Brunswick to inspect buildings with Robb joists, to provide an opinion as to whether the joists were capable of carrying the load of the building. Mr. Skarborn inspected thirteen buildings for the Province of New Brunswick, as well as two shopping centres, the Lancaster Mall in Saint John, New Brunswick and the Cumberland Mall in Amherst, Nova Scotia. In addition, Skarborn Engineering Limited conducted inspections in Nova Scotia as sub-agent for CBCL Limited. [95] The procedure Mr. Skarborn used was to inspect the first three or four panel points or nodes on one-third of the joists. If there was problem, all joists were inspected. In areas with snow load, the first three or four panel points on all joists were inspected. At school he inspected in Saint Louis de Kent, New Brunswick, there was large number of cracked and missing welds, as well as other problems with the joists. [96] When doing his inspections in the late 1990's, Mr. Skarborn was proceeding on the basis that welding procedure data sheets for Robb Engineering existed. It came as surprise to him that Robb Engineering did not have flare beveled welds approved by the Canadian Welding Bureau. Mr. Skarborn was unaware of Robb’s internal correspondence about the problems with welds. Although he was not at first successful in obtaining documentation concerning Robb’s welding procedure, he eventually obtained welding procedure documentation date stamped 1992. [97] Mr. Skarborn testified crack is defect which is never acceptable and must be repaired, and the problems with Robb joists had to be repaired. [98] Mr. Skarborn wanted to determine the strength of the flare beveled welds and puddle welds used in Robb open web steel joists. He had six Robb flare beveled welds and five Robb puddle welds. That was not sufficiently large sample to make an engineering assessment. Additional welds were simulated for testing. The simulated welds were of superior quality to the Robb welds. Mr. Skarborn tested the welds and concluded if the ratio between the face width and effective throat thickness of weld is established, the resistance of flare beveled weld can be determined by inspection of the weld’s face length and width. Mr. Skarborn’s position was set out in paper by himself and Gary Daneff entitled “Shear Resistance of Flare Beveled and Puddle Welds in Open Web Steel Joist Applications” presented to the Annual Conference of the Canadian Society for Civil Engineering in June, 1998. Mr. Skarborn testified his paper assumed competently made welds. [99] The August, 2003 CSA W59-03 Standard adopted face width and effective throat ratio identical to that used by Mr. Skarborn. The ratio did not apply to open web steel joists. [100] Mr. Skarborn did not know the required lengths of welds when he conducted his inspections. [101] In commenting on Mr. Skarborn’s report, Dr. Kennedy said he was comfortable with Mr. Skarborn’s data. The welds simulated for Mr. Skarborn’s testing were the same as the welds made by Robb Engineering. Dr. Kennedy had confidence in the welds. [102] Mr. Skarborn testified it was impossible to measure the length of welds on the top chord where the roof deck obstructed it. In his report, Mr. Skarborn stated, “Welds on the top chord are almost completely obscured by the deck.” He testified it was impossible to measure lengths of welds which were so obscured. He had difficulty inspecting welds on the top chord it could not be done where the roof deck rested on the top chord, where the roof deck was raised an inspection mirror could be used. He stated it was not an ideal methodology, but was the one they used. There were cracked welds on the top chords when Mr. Skarborn conducted the inspection of the Ellerslie Elementary School in Prince Edward Island. The welds were difficult to repair, but pencil grinder could be used to remove the welds prior to rewelding. [103] Welds connect the two top chord angles to prevent buckling. If weld is not present, the length for assessing buckling is longer. [104] All welds should have slag removed to be inspected under normal conditions. Mr. Skarborn normally insists slag be removed before he inspects weld, but he testified, he is practical man and Robb joists were special case. The presence of slag helped in the inspection. Slag is very brittle and if there was movement, the first thing to happen was the slag would crack. [105] Mr. Skarborn had met Gary Follett at number of conferences. He contacted Mr. Follett when he started working on the Robb joist issue. He attended meeting in Fredericton, New Brunswick, he thinks in late 1997 or 1998, which was attended by Mr. Follett and representative of the Nova Scotia Government, where the New Brunswick approach up to that time was explained. [106] When acting as CBCL’s sub-agent in conducting inspections in Nova Scotia, Mr. Skarborn used the Nova Scotia methodology. Mr. Skarborn agreed it is possible for reasonable engineers to disagree and approach the same problem differently. [107] Michel Comeau, professional engineer, testified and was qualified as an expert entitled to give opinion evidence in structural engineering and the design of buildings, and the investigation and remediation of buildings containing open web steel joists. Mr. Comeau is Principal and Director of Engineering of Campbell Comeau Engineering Limited. He has been member of CSA S16 Technical Committee Steel Structures for approximately eighteen years. [108] Mr. Comeau has dealt with Robb joists since the early 1980's. His firm has been involved in thirty buildings containing Robb joists. Starting in 1998, Mr. Comeau looked after half of the buildings himself. The firm inspected buildings for the Royal Bank of Canada. The welding in the Royal Bank buildings was not particularly bad. In buildings inspected by his firm, only small number of defects were found. He inspected the South Centre Mall where the joists had higher percentage of defects. Mr. Comeau stated defective welds are function of workmanship of the joist fabricator. With poor workmanship, more defects of various types can be expected. One could expect defects inside welds of poor workmanship. [109] Mr. Comeau assumed Robb Engineering was qualified fabricator, with qualified welds and welders. He assumed compliance with all Standards: W59, W47 and S16. The use of Standard W59 and S16 is based on the assumption all welding was done in accordance with W59; if not, the use of S16 for further calculations may not be accurate. [110] In preparing his report dated June 9, 2006, Mr. Comeau did not review Mr. Follett’s or Dr. Southward’s reports. He agreed an engineer should take into account available information when preparing report. [111] Mr. Comeau visited the Mayflower Mall for one-half day on August 10, 1999. He looked at the interior of the Wal-Mart store, the roof area of the mezzanine of the Wal-Mart store and was also on the Mall’s roof. He does not recall if ladder was used during the visit. His inspection was visual, to look at the defects set out in the CBCL/fga Consulting report and the repairs carried out. The repairs he observed were reinforcing plates in the area of broken welds. Vertical plates with welds added to reinforce joists. Joists with three or more defective welds were repaired. Broken welds in joists were observed. Mr. Comeau looked at dozen joists. He did not inspect all panel points on any one joist. He did not measure welds or calculate the capacity of welds at the Mayflower Mall. He did not calculate the forces on the Mall or look at design drawings for the Mall. [112] In discussing the remediation scheme for the Mayflower Mall, Mr. Comeau testified broken or missing welds and bent web members must be repaired. joist with missing or cracked welds should never leave fabricating shop. He stated, the reinforcing of 25% of each end of joists 30 feet or more in length is not necessary if all other defects in the joist have been repaired. [113] Mr. Comeau stated if there is crack at the root of weld, it should be deducted in determining the strength of the weld; but as it cannot be seen from the surface, the strength of the weld would be over-estimated. Mr. Comeau testified the reinforcing of the joists would increase the strength of the joist as it would reinforce 25% of the joist at each end. The spacers added to the top chord stiffen the top chord and increase the strength of the joist if the weakest link is on the top chord. Welds from panel point to panel point determine the buckling length of joist. If weld is broken, the buckling length is the distance between sound welds. Spacers limit the buckling length of the joist if there is missing or broken weld. [114] Mr. Comeau stated it is difficult to see welds on the top chord and is not practical to measure welds on the top chord. If the roof decking is down, resting on top of the joist, the welds cannot be measured you can only look up at the welds. When conducting inspections, the only inspection Mr. Comeau made of puddle welds was to look to see if weld was present and feel it with finger. [115] Mr. Comeau did not know when he became aware of the paper “Shear Resistance of Flare Beveled and Puddled Welds in Open Web Steel Joist Applications” by Skarborn and Daneff. He did not think he was aware of it at the time of his visit to the Mayflower Mall. [116] John Richardson, professional engineer and partner in DMR Engineering testified. He was involved with inspecting ten to twenty buildings to determine if they contained Robb joists. If the building contained Robb joists, it would be inspected. Mr. Richardson would look at 5% of joists by doing visual inspection. He said the top chord of joists was difficult to see because of the roof deck resting on it. He spent most of his time looking at the bottom chord. He used prybar mainly in inspecting the top chord. If deficiencies in welds were found, he recommended full inspection. Then he looked at every bottom chord weld and as many top chord welds as he could. [117] Referring to work he did at the North Sydney Mall, he stated welds were not measured as the welds varied along their length and the depth of the weld could not be measured in any way to give meaningful information. He reviewed the work of seven or eight consultants in New Brunswick dealing with Robb joists and agreed their approaches varied widely, as each consultant had his or her own approach. [118] The following facts have been established by the evidence. The Mayflower Mall was built in 1979. It was constructed with open web steel joists, fabricated by the defendant through its subsidiary, Robb Engineering, of Amherst, Nova Scotia. The open web steel joists were transported and erected by the defendant. The Mall’s corrugated metal roof sat on the top chord of the joists. [119] There were problems with the welding of open web steel joists at Robb Engineering. There was lack of quality control. Welding of the joists was not in accordance with Standards CSA W59 and W47.1. As welds were covered with slag, they could not be inspected to determine their adequacy. There was no standard way to pile joists for inspection. Joists were piled so inspectors could see either the top or bottom chord, but not both. There was not adequate inspection of joists. No welding data sheets existed concerning open web steel joist welding. [120] Robb Engineering was aware of the problems with the welding. Samples of production welds were sectioned and examined. Weld metal cracks were evident in samples examined. The welding of Robb joists was inadequate. Considering the Robb Engineering welding practices, there was no non-destructive method to determine if weld had strength and was sound. [121] At the Mayflower Mall all accessible panel points and all accessible joists were inspected. Of the 1,900 open web steel joists that could be inspected, total of 199, or 10.5%, had at least one panel point with broken or missing weld, 84 joists had one or more bent web members and 40 joists had one or more bent chord members. The quality of the welding at the Mayflower Mall was poor, with porosity, overlap and undercut present, slag not removed, and cracked and missing welds. accept the evidence of Messrs. Pinhorn, Crocker and Follett and Dr. Southward as to the quality of the welding at the Mayflower Mall. The length and width of welds on the top chord of joists could not be measured. Where the metal roof deck rested on the top chord, welds could not be seen or inspected. Cracked or missing welds are danger and must be repaired. [122] There were defects in the open web steel joists at the Mayflower Mall. The defects constituted a real and substantial danger to the occupants of the Mall. The danger was caused by the defendant’s negligence in the fabrication, transportation and erection of the open web steel joists. [123] prefer the evidence of Mr. Follett and Dr. Southward to the evidence of the defendant’s experts. [124] have difficulty with Dr. Kennedy’s evidence for the following reasons. [125] Firstly, Dr. Kennedy considered the remediation at the Mayflower Mall unnecessary as the capacity of welds in the joists could be determined by measuring their length and width. Determining the capacity of welds by outside measurements is premised on properly fabricated welds. To use outside measurements to determine capacity, Dr. Kennedy testified he depends on the efficacy of the welder. Dr. Kennedy also assumed welds on the top chord were the same as welds on the bottom chord. This assumption is not supported by the evidence. It is obvious from the evidence, including the great number of cracked and missing welds, and lack of quality control, welds were not properly fabricated at Robb Engineering. Welds on the top chord could not be measured Dr. Kennedy said the length could be estimated that is not sufficient when dealing with public safety. [126] Secondly, Dr. Kennedy placed great importance on the results of the testing contained in the Newfoundland report. He considered only gross defects had to be repaired, as the joists performed well during testing. However, as he agreed on cross-examination, fair amount of repairs had been made to the joists in accordance with W59 and the welds, when tested, were no longer Robb welds. [127] Thirdly, while stating it was important for an engineer to review all available information when undertaking an assignment, when preparing his report Dr. Kennedy did not review the available Robb Engineering documentation concerning the welding process or Mr. Follett’s and Dr. Southward’s expert reports. [128] Fourthly, the calculations set out in Table IV of his report were wrong. When the calculations were corrected, the resistance of three of four welds was less than the maximum potential shear load. Table IV does not tell anything about the top chord welds as they were not tested, nor does it indicate what is going on inside the weld. On redirect examination, Dr. Kennedy, after his calculations were corrected, described the welds referred to in Table IV as “marginally inadequate”. [129] Finally, in his report, Dr. Kennedy concluded 43% of the broken welds at the Mayflower Mall were broken by excessive prying forces during the inspection by CBCL and fga Consulting. do not accept that conclusion. Mr. Crocker testified he used the prybar on both top and bottom chords, but sometimes he could not apply enough pressure on the top chord as you might break spot weld which attached the roof deck to the top chord or bend the chord. He added, he had never broken good weld with prybar. Both Mr. Follett and Dr. Southward testified person could not apply enough pressure to crack sound weld. accept that person standing on stepladder holding flashlight and prybar could not apply enough force to crack sound weld. [130] am not prepared to attach any weight to Dr. Kennedy’s opinion that the remedial work carried out by the plaintiff was excessive. [131] have difficulty with Mr. Comeau’s opinions for the following reasons. [132] Firstly, Mr. Comeau’s opinion was, broken or missing welds and bent web members must be repaired. The reinforcement of 25% of each end of joists thirty feet or more in length was unnecessary if joist had properly fabricated welds, and missing or cracked welds repaired. His opinion is based on there being properly fabricated welds. That is where his opinion fails. Nobody knew the capacity of the welds. They were fabricated without following recognized Standards. There was lack of quality control. Mr. Comeau testified, with poor workmanship or defects of various types, including interior defects, can be expected. Mr. Comeau assumed compliance with all Standards. [133] Secondly, Mr. Comeau examined only very small number of joists, only dozen. He did not inspect all panel points on any one joist. [134] Thirdly, in his report, Mr. Comeau comments on the snow load data for Sydney and says the Sydney area has received snow loads up to the design values for the Mall since the Mall was constructed. On cross-examination, he stated he did not know how much snow was on the roof of the Mayflower Mall. [135] am not prepared to attach any weight to Mr. Comeau’s opinion that the remedial work carried out by the plaintiff was excessive. [136] have difficulty with Mr. Skarborn’s opinion for the following reasons. [137] Firstly, Mr. Skarborn did not visit the Mayflower Mall and could not and did not give evidence of the condition of the welding at the Mall. [138] Secondly, Mr. Skarborn was not prepared to agree that his method of determining capacity of welds by outside measurement required the welder to follow approved procedures. He assumed high enough amperage was used in the welding to ensure an adequate weld. He agreed an outside measurement will not show partial fusion of web and chord, porosity inside weld or crack inside the weld. He was unaware of the internal correspondence concerning welding problems at Robb Engineering. Considering the problems with Robb Engineering’s welding, there is not sufficient consistency in the welding to use his method. [139] Thirdly, Mr. Skarborn measured bottom chord of joists. He testified it was impossible to measure the length of welds on top chords were the roof deck obstructed them. [140] Fourthly, although critical of the inspection methodology used in Nova Scotia when acting as sub-agent of CBCL Limited in conducting inspections in Nova Scotia, Mr. Skarborn used the Nova Scotia methodology. [141] am not prepared to accept Mr. Skarborn’s opinion that the remediation carried out by the plaintiff was excessive. [142] Burnac’s claim is for economic loss for the cost of repairs and remediation to the Robb joists at the Mayflower Mall. The test to recover for such an economic loss was set out by La Forest, J. in giving the Court’s judgment in Winnipeg Condominium Corporation No. 36 v. Bird Construction Co. Ltd., 1995 CanLII 146 (SCC), [1995] S.C.R. 85 at p. 121 as follows: conclude that the law in Canada has now progressed to the point where it can be said that contractors (as well as subcontractors, architects and engineers) who take part in the design and construction of building will owe duty in tort to subsequent purchasers of the building if it can be shown that it was foreseeable that failure to take reasonable care in constructing the building would create defects that pose substantial danger to the health and safety of the occupants. Where negligence is established and such defects manifest themselves before any damage to persons or property occurs, they should, in my view, be liable for the reasonable cost of repairing the defects and putting the building back into non-dangerous state. [143] In describing the burden of proof on plaintiff, La Forest, J. stated at p. 125: ... The burden of proof will always fall on the plaintiff to demonstrate that there is serious risk to safety, that the risk was caused by the contractor’s negligence, and that the repairs are required to alleviate the risk. [144] United Dominion Industries Corporation, through its subsidiary, Robb Engineering, fabricated, transported and erected the open web steel joists in the Mayflower Mall. [145] The evidence clearly shows there was lack of control at Robb Engineering over how welds on open web steel joists were made. There was protocol established through CSA Standards W47 and W59 to be followed in the fabrication of welds to ensure confidence the welds are properly fabricated. Robb Engineering did not comply with the Standards. Robb welds were covered with slag, which made them virtually impossible to inspect. There was no comprehensive inspection of joists at Robb Engineering. Inspections took place in “hit or miss” fashion. When joists were inspected, only one chord, top or bottom, depending on how the joists were piled, was inspected. Mr. Smith testified, if he was busy, he had no time to inspect joists. He agreed there could be joists not inspected. [146] Through his involvement with the Open Web Steel Joist Review Committee for the Province of Newfoundland, Mr. Follett was aware of the problems with Robb open web steel joists, including the lack of quality control. This lack of quality control was obvious, considering the number of missing or cracked welds found during inspections. Dr. Southward was also aware of the problem with Robb open web steel joists. [147] The inspection at the Mayflower Mall showed there were many defects in the welds in the joists, many more than the average number of defects found in buildings containing Robb joists in Nova Scotia. The evidence shows, and find, there were defects in the open web steel joists at the Mayflower Mall. [148] All experts who testified at the trial agreed missing or cracked welds had to be repaired. The evidence clearly shows that the defects created real and substantial danger to the occupants of the Mall. Joists should not leave fabricators’ facilities with cracked or missing welds. From the evidence, the danger was caused by the defendant’s negligence. [149] The defendant agrees missing and cracked welds, as well as damaged chord and web members, have to be repaired, but says the reinforcing of the joists and the addition of spacers to the top chord was not necessary to mitigate the damage. Through inspections, as described by witnesses called by the defendant, not all welds could be inspected and their capacity determined. Once the repairs of missing or cracked welds, and damaged web or chord members were made, the joists were capable of supporting the load on them. There being no danger once the repairs were made, there was no longer any real and substantial danger needing repairs. [150] The defendant says the reinforcing of the joists was dealing with “perceived” danger and not an actual “real and substantial” danger. In support of its position, the defendant cites M. Hasegawa Co. v. Pepsi Bottling Group (Canada) Co., 2002 BCCA 324 (CanLII), [2002] 213 D.L.R. (4th) 663 (B.C.C.A.), where Finch, C.J.B.C. stated in giving the Court’s judgment at p. 676: With respect, test of perceived as opposed to actual danger is, in my view vague, overbroad, and impractical. The plaintiff does not suggest whose perception should govern, or how trier of fact could, on any reasoned basis, choose between evidence of differing perceptions of risk. would accept as sound the premise that the policy of the law should encourage the production and distribution of food products that are wholesome, and not danger to health. But whether food product is an actual danger is matter upon which scientific opinion, however uncertain it may sometimes be, can be offered, tested and weighed. test of “perceived” danger is, however, no test at all. Perception is not matter susceptible of proof, or disproof, by evidence. [151] The plaintiff takes the position remediation was necessary. No confidence can be had in the capacity of Robb joists. Proper welding procedures were not followed. There was no quality control at Robb Engineering. Inspections at the Robb facility were haphazard and incomplete. There were internal problems with welds from Robb Engineering which could not be discovered by non-destructive inspection. The lack of proper welding procedures and quality control issues prevented one from having confidence in Robb welds, at least on external observations. Welds on the top chord could not be inspected to determine if problem existed. There being real and substantial danger, the extent of which could not be determined, the remediation, including reinforcement and addition of spacers, was necessary to alleviate the danger. [152] I find the remediation program carried out at the Mayflower Mall was necessary to alleviate the real and substantial danger existing at the Mall. The fabricator, Robb Engineering, did not employ proper welding procedures and practices in welding the joists. There was no quality control. Given what was known about the practices at Robb Engineering, and observations made in the field, reasonable person could not have confidence in the capacity of welds used by Robb Engineering. Welds on the top chord of joists could not be inspected. The evidence was the defects in the welding occurred randomly and, what was found on the bottom chord, could not be taken as what existed on the top chord. [153] The placing of spacers on the top chord was part of the alleviation of the danger. The state of the welds on the top chords was unknown. If there was cracked or missing weld on the top chord, the lateral buckling length of the chord would be lengthened and, therefore, the possibility of lateral buckling increased. The placing of spacers reduced the possibility of lateral buckling. [154] The remediation was required to alleviate the real and substantial danger existing at the Mayflower Mall caused by the defendant’s negligence. [155] The parties agreed, subject to determination of liability, the following are the hard construction costs incurred by the plaintiff: A. Weld Repair 10,119.00 B. Web Repair 22,252.00 C. Web Reinforcement 1,324,210.00 D. Spacers 103,020.00 E. Chord Repair 10,428.00 F. 1998 Repairs 13,021.00 G. Design Update (C.O. No. 1) 74,668.00 TOTAL $1,557,718.00 [156] Agreement was also reached that soft construction costs were in the amount of $845,925.00 and the plaintiff will recover the soft construction costs in the same percentage it recovers hard construction costs. Inspection costs were agreed to be $50,895.00. The parties also agreed Harmonized Sales Tax (HST) is to be included in the calculation of damages. [157] The plaintiff abandoned its claim for the cost of design upgrade (C.O. No. 1) in the amount of $74,668.00, as not being needed to alleviate the danger. [158] Having found the remediation was required, the defendant will pay to the plaintiff the sum of $1,483,050.00 in hard construction costs as follows: A. Weld Repair $10,119.00 B. Web Repair 22,252.00 C. Web Reinforcement 1,324,210.00 D. Spacers 103,020.00 E. Chord Repair 10,428.00 F. 1998 Repairs 13,021.00 Total 1,483,050.00 [159] The plaintiff recovered 95.2066 per cent of its hard construction costs and will recover 95.2066 per cent of its soft construction costs, which results in recovery of soft construction costs of $805,376.43. [160] The defendant will pay to the plaintiff soft construction costs of $805,376.43 and inspection costs of $50,895.00. The plaintiff will also recover from the defendant HST due on the above amounts. [161] If the parties are unable to agree, will hear them as to prejudgment interest and costs. Coughlan, J.

Following the collapse of the roofs of two buildings in Newfoundland, both of which were constructed with open web steel joists fabricated by the same company, the Nova Scotia government wrote to owners of buildings containing these joists, including the plaintiff mall owner, recommending that the joists be inspected by a qualified professional engineer. An inspection of the mall roof revealed that 10.5 per cent of the joists inspected had at least one panel point with a broken or missing weld and the same remediation scheme as that implemented by the Province for the government's own buildings was recommended. The plaintiff, concerned with safety issues arising from the report, followed the consultant's recommendations and undertook remediation of the mall and then claimed against the defendant, which was the parent company of the corporate entity which had fabricated the joists. The defendant's expert took the position that although the actual repairs to the welding and webs of the open steel joists was necessary, the reinforcing of the joists undertaken in the remediation was not required in order to mitigate the danger. Judgment for the plaintiff; there were defects in the open web steel joists at the mall which constituted a real and substantial danger to the occupants; this danger was caused by the defendant's negligence and the remediation program carried out at the mall was necessary to alleviate the real and substantial danger. There were internal problems with the welds which could not be discovered by non-destructive inspection and the lack of proper welding procedures and quality control issues at the company prevented one from having confidence in any welds fabricated by them, at least based on external observations.

2_2007nssc40.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 122 Date: 2010 03 26 Docket: Q.B.G. No. 1553 of 2009 Judicial Centre: Saskatoon BETWEEN: INLAND CONTRACTING LTD. and BRUCE BAKKEN, GIANTS HEAD EXCAVATING LTD., MIKE DERY HOLDINGS LTD., 101138096 SASKATCHEWAN LTD. and JAMES LEONARD LANGLEY RESPONDENTS Counsel: Grant A. Richards for Inland Contracting Ltd. Lyle W. Zuk, Q.C. for the respondents FIAT ACTON J. March 26, 2010 [1] This is an application by Inland Contracting Ltd. (“Inland”) for an order pursuant to s. 63(2) of The Personal Property Security Act, 1993, S.S. 1993, c. P-6.2 (“the Act”), requiring the respondents, 101138096 Saskatchewan Ltd. (“101138096”), or those in possession to deliver to the applicant four pieces of equipment, namely, a 1996 Ingersoll-Rand Roller, a 2005 cat skid steer loader, a 2005 Komatsu excavator, and a 2008 Trailmax TRD. [2] The four pieces of equipment were rented by Inland to Mike Dery Holdings Ltd. and Giants Head Excavating Ltd. (“Giants Head”) pursuant to an equipment rental contract entered into at Penticton, British Columbia, between April 21, 2008 and August 6, 2008. [3] Inland did not register any security interest in the equipment in British Columbia or Saskatchewan until October 20, 2009. [4] In the fall of 2008, the equipment was transported to Saskatchewan by Mike Dery Holdings Ltd. and/or Giants Head for the purpose of doing heavy equipment work in Saskatchewan. In February of 2009, 101138096 purchased the equipment which is the subject of this application from Mike Dery Holdings Ltd. and Giants Head (and other trailers and gravel crushing equipment from unrelated third parties) all for valuable consideration. Searches were completed to establish no registrations against the equipment. In April of 2009 the equipment was leased to Giants Head and security agreement registered in Saskatchewan on May 5, 2009 listing the equipment as general property but not specifically registering the equipment by serial number. [5] The security agreement was taken by 101138096 to secure the rental payments owed to it under the lease by Giants Head who had possession of the equipment. Mike Dery Holdings Ltd. and Giants Head defaulted under their payments to Inland and Giants Head defaulted in its payments to 101138096. [6] September 18, 2009, 101138096 seized the equipment leaving it in the possession of Giants Head. The equipment was subsequently removed from Giants Head’s possession and stored at the farm of Bruce Bakken, an acquaintance of the owner of 101138096 with the equipment advertised for sale by tender. Tenders closed October 10, 2009. No satisfactory tenders were received. On October 19, 2009, 101138096 forwarded letter to Giants Head confirming that 101138096 had elected to retain the equipment as payment for the outstanding indebtedness. As of this date Personal Property Security registry search in Saskatchewan disclosed no security interest other than that of 101138096 in the equipment. [7] Inland subsequently registered both British Columbia and Saskatchewan Personal Property registry interest by serial number respecting the equipment and its original agreements of 2008. [8] The issue before the court is whether Inland by virtue of its Personal Property Security registration by serial number on October 20, 2009 has priority over the interest of 101138096 which registered earlier as general security without serial numbers but who alleges to have taken possession of the equipment and elected to retain the equipment seized in satisfaction of Giants Head’s indebtedness October 19, 2009. This occurred one day prior to the registration of the security interest by serial number of Inland. [9] Counsel for the parties have referred the court to the cases of Bank of Nova Scotia v. Royal Bank of Canada, 1987 CanLII 4656 (SK CA), [1987] S.J. No. 541 (QL), 58 Sask. R. 304 (C.A.) and the Royal Bank of Canada v. Steinhubl’s Masonry Ltd., 2003 SKQB 299 (CanLII), 237 Sask. R. 297, being judgment of Klebuc J. (as he then was), which cites as authority the earlier Bank of Nova Scotia v. Royal Bank, supra, decision of the Court of Appeal. [10] Section 35(1)(b) of the Act provides that: perfected security interest has priority over an unperfected security interest. [11] The two ways to perfect security interest in collateral is: (a) by registration or (b) by taking possession of the collateral. [12] With respect to serial numbered goods, s. 35(4) of the Act states: security interest in goods that are equipment and are of kind prescribed as serial numbered goods is not registered or perfected by registration for the purposes of subsection (1), (7) or (8) or subsection 34(2) unless financing statement relating to the security interest and containing description of the goods by serial number is registered. [13] Section 19 of the Act states: security interest is perfected when it has attached and all steps required for perfection pursuant to this Act have been completed, regardless of the order of occurrence. [14] Section 25 states: Subject to section 19, registration of financing statement perfects security interest in collateral. [15] discussion of these sections of the Act was completed by Klebuc J. in Royal Bank of Canada v. Steinhubl’s Masonry Ltd., supra, wherein he referenced the Saskatchewan and Manitoba Personal Property Security Acts Handbook of Ronald C.C. Cuming and Roderick J. Wood (Toronto: Carswell, 1994), at pages 280-81, which reads: Section 35(4) should be read along with section 30(6) and (7) ... and with the collateral description provisions of the regulations. These provisions create special scheme for the description of specific goods by serial numbers on financing statements. This scheme is designed to maximize the protection available through serial number registration without forcing secured parties to undertake unnecessary registration requirements. The Act and regulations provide that all goods may be classified as consumer goods, inventory or equipment. Goods defined by the regulations as “serial numbered goods” held as consumer goods must be described specifically by serial number. The definition of “serial numbered goods” is limited to certain defined types of goods which have unique, easily identifiable serial numbers (such as motor vehicles). ... Different consequences are associated with the decision to describe serial numbered equipment in the general collateral description field. When “serial numbered goods” are held by the debtor as equipment or inventory, the secured party has the option to describe the goods in general terms or specifically by serial number. The choice of one method of registration over the other is not without consequence. If the secured party chooses to describe the equipment by serial number in the appropriate field on the financing statement, the maximum level of protection against competing interests is obtained. The security interest will have priority over the interest of subsequent buyer of the goods who acquired her interest in sale out of the ordinary course of the debtor’s business. It will have priority over any other subsequently perfected security interest in the goods, and priority over judgment creditor or trustee in bankruptcy of the debtor. If the secured party chooses to describe the equipment only in general terms in the general collateral description field of the financing statement, his security interest has priority only with respect to seizing creditors and the trustee in bankruptcy of the debtor. He will not have priority over buyer who acquired the equipment for value and without knowledge of the security interest (section 30(6) and (7) ... nor will he have priority over other perfected security interests in the equipment (section 35(4)). ... Wherein Klebuc J. continues at para. 14: It follows that s. 35(4) of the PPSA and ss. 2(1)(o), 2(1)(u), 12, 13 and 14 of the Regulations (“the serial number registration regime”) are intended to eliminate, or at least abate, what is often described as the “A-B-C-D problem” associated with personal property registry systems that employ the debtor’s name (i.e., “B”) as their registration and search criterion. The following example illustrates the noted deficiency: “A obtains security interest in B’s goods. sells his goods to who in turn offers to sell them to D. conducts registry search based on C’s name, being the only search criterion available to him/her. The search does not reveal A’s security in the goods because A’s security interest was perfected by registration based on B’s name. In the result, the registry system will not afford any protection vis-à-vis A, notwithstanding his/her search.” In that case Klebuc J. initially had to make determination of whether or not the forklift was required to be registered by serial number. This issue is not before the court as the parties agree that had 101138096 registered by serial number there would not be an issue. [16] However the respondent 101138096 had a general security registered and had actual possession of the equipment in early October 2009 which therefore perfected its security while it retained possession. [17] As of October 19, 2009 when 101138096 elected to take the collateral as satisfaction of the debt the only party to whom notice was required was the debtor Giants Head and his notice is in compliance with s. 61(1) and s. 61(3) which read: 61(1) After default, the secured party may propose to take the collateral in satisfaction of the obligation secured by it, and shall give notice of the proposal to: (a) the debtor or any other person who is known by the secured party to be an owner of the collateral; (b) creditor or person with security interest in the collateral whose interest is subordinate to that of the secured party, and: (i) who, prior to the day on which notice is given to the debtor, has registered financing statement using the name of the debtor or according to the serial number of the collateral in the case of goods of kind that is prescribed as serial numbered goods; and (ii) whose security interest is perfected by possession when the secured party seized or repossessed the collateral; and (c) any other person with an interest in the collateral who has given written notice to the secured party of that interest prior to the day on which the notice is given to the debtor. 61(3) If no notice of objection is given, the secured party is, at the expiration of the 15-day period or periods mentioned in subsection (2), deemed to have irrevocably elected to take the collateral in satisfaction of the obligation secured by it, and is entitled to hold or dispose of the collateral free from all rights and interests of the debtor and from the rights and interests of any person entitled to receive notice pursuant to: (a) clause (1)(b); or (b) clause (1)(c) if the person’s interest is subordinate to that of the secured party. [18] Therefore ownership transferred to the respondent free and clear of the claims of the applicant, October 19, 2009. [19] When the applicant completed its registration on October 20, 2009 the collateral was no longer available because of 101138096’s election on October 19, 2009. [20] The respondent perfected its security interest in the equipment which is subject to this application by taking possession thereof. Electing to take the collateral as satisfaction of the obligation secured and providing the required notices prior to registration by the applicant, transferred title to the equipment to the respondent 101138096 free and clear of the claim of the applicant. [21] Therefore the applicant’s application is dismissed with costs to the respondent, 101138096 Saskatchewan Ltd. It is further ordered that the registration under the Act made by Inland as registration number 300516894 be discharged.

FIAT: This is an application for an order pursuant to s. 63(2) of The Personal Property Security Act requiring the respondents or those in possession to deliver to the applicant four pieces of construction equipment. The four pieces of equipment were rented by applicant, Inland, to respondents, Mike Dery Holdings Ltd. and Giants Head Excavating Ltd. pursuant to an equipment rental contract entered into at Penticton, British Columbia, between April 21, 2008 and August 6, 2008. Inland did not register any security interest in the equipment in British Columbia or Saskatchewan until October 20, 2009. In the fall of 2008, the equipment was transported to Saskatchewan by Mike Dery Holdings Ltd. and/or Giants Head. In February of 2009, respondent 101138096 purchased the equipment from Mike Dery Holdings Ltd. and Giants Head for valuable consideration. Searches were completed to establish no registrations against the equipment. In April of 2009, the equipment was leased to Giants Head and a security agreement registered in Saskatchewan on May 5, 2009 listing the equipment as general property but not specifically registering the equipment by serial number. The security agreement was taken by 101138096 to secure the rental payments owed to it under the lease by Giants Head who had possession of the equipment. Mike Dery Holdings Ltd. and Giants Head defaulted under their payments to Inland and Giants Head defaulted in its payments to 101138096. September 18, 2009, 101138096 seized the equipment leaving it in the possession of Giants Head. The equipment was subsequently removed from Giants Head's possession and stored at the farm of Bruce Bakken. On October 19, 2009, 101138096 forwarded a letter to Giants Head confirming that 101138096 had elected to retain the equipment as payment for the outstanding indebtedness. As of this date a Personal Property Security registry search in Saskatchewan disclosed no security interest other than that of 101138096 in the equipment. Inland subsequently registered both a British Columbia and Saskatchewan Personal Property registry interest by serial number respecting the equipment and its original agreements of 2008. The issue before the Court is whether Inland by virtue of its Personal Property Security registration by serial number on October 20, 2009 has priority over the interest of 101138096 which registered earlier as general security without serial numbers but who alleges to have taken possession of the equipment and elected to retain the equipment seized in satisfaction of Giants Head's indebtedness October 19, 2009. This occurred one day prior to the registration of the security interest by serial number of Inland. HELD: The application is dismissed with costs to the respondents. The respondent 101138096 had a general security registered and had actual possession of the equipment in early October 2009 which therefore perfected its security while it retained possession. As of October 19, 2009 when 101138096 elected to take the collateral as satisfaction of the debt the only party to whom notice was required was the debtor Giants Head and his notice is in compliance with s. 61(1) and s. 61(3) of the Act. When the applicant completed its registration on October 20, 2009 the collateral was no longer available because of 101138096's election on October 19, 2009. The respondent perfected its security interest in the equipment which is subject to this application by taking possession thereof. Electing to take the collateral as satisfaction of the obligation secured and providing the required notices prior to registration by the applicant, transferred title to the equipment to the respondent 101138096 free and clear of the claim of the applicant.

9_2010skqb122.txt

INFORMATION 24202906 2005 SKPC 38 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT YORKTON, SASKATCHEWAN Between: HER MAJESTY THE QUEEN -and- TODD R. TYNDALL Brent Klause for the Crown Arliss Dellow for accused GREEN, R.G., PCJ JUDGMENT April 11, 2005 I. INTRODUCTION [1] Todd Tyndall is charged with driving without due care and attention at Yorkton, Saskatchewan on February 18, 2004, contrary to section 44(1) of the Highway Traffic Act. Section 44(1) provides “no person shall drive vehicle on highway without due care and attention”. This offence is in effect careless driving, as distinguished from dangerous driving under the Criminal Code. [2] At trial, the Crown called three witnesses: Rebecca Banga, Justin Banga and Lance Kuchar. The defence then called four witnesses: Michael Rostotski, Corporal Pelzer, Constable Kinellson and Mr. Tyndall. [3] On this date, Mr. Tyndall, who is Constable with the Royal Canadian Mounted Police stationed in Yorkton, was on duty in marked police car. With him was an authorized “ride-along” passenger named Michael Rostotski. While driving south on the road that passes beside Tim Horton’s restaurant, Mr. Tyndall received radio message asking him to assist another officer on “non-priority” matter in the south-west part of Yorkton. accept Mr. Tyndall’s evidence that the most direct route to the area he was called to was proceeding straight south along this road, passing directly to the east of Super Store, and then connecting to Highway and subsequently to the bypass leading to the south-west area. [4] As he drove his vehicle down the road past Super Store on his right, with the parking lot on his left, Mr. Tyndall stopped his vehicle, and backed up to where Justin Banga and Rebecca Banga were standing with their infant girl. There was then discussion between Mr. Tyndall and Mr. Banga, and shortly thereafter Mr. Tyndall’s vehicle moved forward and collided with Lance Kuchar, man who just come out of Super Store and was crossing the road on foot directly in front of this police vehicle. [5] The issue to be determined is whether Mr. Tyndall’s actions in operating his vehicle on the road beside Super Store constituted driving without due care and attention. The standard to be applied was set out by the Saskatchewan Court of Queen’s Bench in R. v. Kozun 1997 CanLII 11313 (SK QB), [1997] S.J. No. 98, where Madam Justice Hunter, in applying the Supreme Court of Canada’s decision from R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] S.C.R. 1299, held that an offence under section 44(1) is strict liability offence “in which the prosecution need not prove state of mind, but it is open to the accused to prove due diligence defence” including “taking all reasonable steps to avoid the particular event”. As result, the standard of proof in this case is whether the Crown has proved that Mr. Tyndall drove without due care and attention applying an objective test in assessing carelessness and if so, whether Mr. Tyndall has then shown, on balance of probabilities, that he exercised due diligence in the context of the circumstances he encountered. [6] The actions of Mr. Tyndall which could be considered careless are, firstly, the speed at which he drove past Super Store, and, secondly, his driving forward into Mr. Kuchar. [7] Regarding the issue of speed, Mr. Banga said, after he and his family left Super Store, that car “zipped past”. He thought this car was going too fast based on the short time it took to pass by them, as they stood at the cross-walk preparing to cross this road. Mrs. Banga said the car was moving by them very fast. Neither witness estimated the actual speed of this vehicle. [8] For the defence, Michael Rostotski testified that the vehicle he was in was travelling at between 20 and 25 kilometres per hour. Mr. Tyndall testified he was not driving too fast, but did not state any speed. As no evidence was lead by the Crown on what the speed limit was at the point Mr. Tyndall drove by the Bangas, there is insufficient evidence to conclude, even on an objective standard, that Mr. Tyndall’s act in initially driving past the Bangas constituted driving without due care and attention. [9] The issue of Mr. Tyndall’s vehicle striking Mr. Kuchar is more complex. In considering whether this action by Mr. Tyndall constituted an offence under section 44(1), will review four areas where there was inconsistency and conflict in the evidence given by Crown and defence witnesses. 1. Why did Mr. Tyndall come back, and was he justified in doing so? [10] At trial, the Crown questioned, in considering the totality of Mr. Tyndall’s driving, why he would have stopped his vehicle, and then backed up to speak with Mr. Banga. In effect, the suggestion was that Mr. Tyndall had an oblique motive for doing so, perhaps thinking that Mr. Banga was being insolent and returning to set him straight. The Crown argued Mr. Tyndall should have simply continued driving. [11] This assertion was based on the evidence of Mr. and Mrs. Banga that neither was waving their arms, or giving any other cause for concern other than Mr. Banga’s statement to his wife saying “that vehicle could slow down”. No specific reference was made by Mr. or Mrs. Banga about how loud this statement was, although Mr. Banga, who described himself as shocked, annoyed and concerned by the situation, did say he was not shouting at the officer. Both Mr. Rostotski and Mr. Tyndall said they passed by where the Bangas were standing, heard someone they later determined to be Mr. Banga holler, and then reversed to his position to find out what his concern was. [12] In these circumstances, as there could be no other reason on the evidence presented for Mr. Tyndall to stop his vehicle, find that Mr. Banga did use raised voice in speaking to his wife, and that his voice was overheard by Mr. Tyndall and Mr. Rostotski. also find that Mr. Tyndall could have reasonably concluded that Mr. Banga was in need of assistance. Clearly, as police officer, Mr. Tyndall was placed in difficult position. Had he not responded through this inquiry, and had Mr. Banga been seeking assistance for some emergency situation occurring in or near Super Store, this officer may well have been criticised for simply driving off. 2. What was said between Mr. Tyndall and Mr. Banga after he reversed his vehicle? [13] Although not recalling Mr. Tyndall's exact words to Mr. Banga, Mrs. Banga said the officer asked "Did you say something, sir?" She gave no other evidence about further conversations between the two. Mr. Banga initially said Mr. Tyndall first asked him what he had said. Later in his evidence, Mr. Banga said the officer first asked if Mr. Tyndall had problem with him, and what he had said. Mr. Banga then testified that he replied he had told his wife "that car could slow down", and that Mr. Tyndall then told him he was on call, and presumably had to leave. Mr. Banga claimed he didn't lose his temper, and that the exchange was not heated. He gave no evidence about discussions between Mr. Tyndall and Mr. Kuchar. [14] Defence witness Michael Rostotski said, after reversing his vehicle, Mr. Tyndall asked Mr. Banga if he could help him, referring to him as “sir”. He said Mr. Banga replied "Slow the fuck down" and "you should have had your fucking lights and sirens on". Mr. Rostotski then said that, after some conversation between Mr. Tyndall and Mr. Banga, Mr. Tyndall told Mr. Banga he did not have time as he was on call. [15] Mr. Tyndall testified that, after backing up to where Mr. Banga was, he said to him "Sir, can help you?" Mr. Banga responded that Mr. Tyndall should slow "the fuck" down and then said if Mr. Tyndall had call he should "fucking go". [16] This incident happened over year ago. note elsewhere in Mr. Banga's evidence that he claimed Mr. Tyndall got out of his police vehicle after striking Mr. Kuchar, contrary to the evidence of Mr. Tyndall and Mr. Kuchar who both said the officer remained in his vehicle. As result and given the stressful situation Mr. Banga found himself in, question whether Mr. Banga, while testifying, had complete and accurate recollection of what was said. Given the contradictions in evidence on this point, am not able to determine the exact words spoken between these two. do, however, accept that Mr. Banga was upset at Mr. Tyndall this day, and did use an angry and raised voice towards Mr. Tyndall. further accept that Mr. Tyndall did initially inquire about whether he could assist Mr. Banga, and that the conversation then became heated between the two, and ended when Mr. Tyndall said he had to leave on his call. 3. What was said between Mr. Tyndall and Mr. Kuchar after Mr. Tyndall's vehicle struck him? [17] Mr. Kuchar said that as he was leaving Super Store, he passed in front of stopped vehicle, which turned out to be Mr. Tyndall's vehicle. Mr. Kuchar looked to his right and began to cross the road. He was then struck from the left by Mr. Tyndall's vehicle, and fell onto that vehicle's hood. He suffered swelling in his hip, and was later taken to the emergency ward of Yorkton Regional Hospital by another police officer. After being struck by the vehicle, Mr. Kuchar said he approached Mr. Tyndall, and said "What the hell are you doing", after which Mr. Tyndall lifted up his hands. Mr. Kuchar said he then advised Mr. Tyndall that he would sue him if he was injured, to which Mr. Tyndall responded he had insurance. Mr. Kuchar questioned Mr. Tyndall about whether he was drinking, and why he had not been watching. He admitted to losing his temper, and wasn't sure if he swore at the officer. He also said Mr. Tyndall may have asked him whether he needed an ambulance. Mr. Kuchar claimed Mr. Tyndall initially would not give his name, but later did. [18] Mr. Rostotski said Mr. Kuchar, after being struck by the vehicle, was angry, and said "Where the fuck where you going" and said he could sue Mr. Tyndall. He said Mr. Tyndall apologised, saying this was an accident and asked whether Mr. Kuchar wanted ambulance assistance. He also said Mr. Kuchar initially refused to give his name. [19] Mr. Tyndall said, after striking Mr. Kuchar, he immediately apologized to him, at which time Mr. Kuchar "went off” on him, questioning whether Mr. Tyndall was “high”, and saying he was going to sue Mr. Tyndall, and he was going to have Mr. Tyndall fired. He said Mr. Kuchar initially refused to give his name, and continued his angry accusations toward Mr. Tyndall. Given the nature of this confrontation and as an accident had occurred, Mr. Tyndall said he rolled up his window, and called for other police officers to attend the scene. [20] There is no doubt Mr. Kuchar was very angry. This is understandable, given that he was struck by vehicle shortly after emerging from Super Store. find that Mr. Tyndall did apologise to him, and did offer to have an ambulance summoned. find that Mr. Kuchar, who was crossing the road outside of the cross-walk, did swear at Mr. Tyndall, and did threaten to sue him and cause him to be fired from his employment. do not find much significance in which of the two, if any, would not provide their names, as this exchange eventually occurred between the two in an incident that was relatively short in duration. 4. How far did Mr. Tyndall's vehicle move before he struck Mr. Kuchar? [21] key issue in this trial was how far Mr. Tyndall's vehicle moved before striking Mr. Kuchar. Mr. Kuchar said it moved five to six feet, although he was guessing about that. Mr. Banga said the vehicle moved between fifteen and twenty feet, then said it was ten to fifteen feet, then said two to fifteen feet. On cross-examination, Mr. Banga admitted he had given statement saying Mr. Tyndall's vehicle was not going very fast when it struck Mr. Kuchar, and that the vehicle only moved short distance. Mr. Banga also admitted saying that his judgement regarding distances was "not great". Mrs. Banga, on cross-examination, testified that the vehicle moved between six inches and two feet before striking Mr. Kuchar. [22] Mr. Rostotski said the car only moved one half tire rotation before striking Mr. Kuchar, who was less than one foot from the car when he first saw Mr. Kuchar. Corporal Pelzer, of the RCMP, attended immediately to the scene that evening, and photographed and measured skid mark on the pavement below this police vehicle's left front tire. accept that this vehicle had not been moved at the point Corporal Pelzer attended. He said this skid mark measured thirty-four centimetres, distance of approximately one foot. Corporal Pelzer also said he could find no sign of damage to the front end of this vehicle at the point where contact was made with Mr. Kuchar. Mr. Tyndall, in his evidence, said after concluding his conversation with Mr. Banga, he took his foot off the brake, not touching the accelerator, and rolled forward striking Mr. Kuchar, who was directly in front of the vehicle. He said the vehicle moved less than one foot, and didn't not strike Mr. Kuchar with any significant degree of force, saying (as did Mr. Rostotski) that their seat belt harnesses did not lock upon impact. [23] Based on the evidence of Corporal Pelzer, as confirmed by the picture filed as #4 in Exhibit P1, and the evidence of Mrs. Banga, taken together with the evidence of Mr. Rostotski and Mr. Tyndall, accept that this vehicle only moved very short distance forward before striking Mr. Kuchar. accept that distance was at most one foot. also accept Mr. Tyndall's evidence that he did not touch the accelerator, and briefly took his foot off the brake, and then immediately reapplied the brake after seeing Mr. Kuchar, who find was positioned directly in front of the police car at this time. also accept that neither seat belt, belonging to Mr. Tyndall or Mr. Rostotski, locked upon striking Mr. Kuchar, and that this vehicle did not accelerate and did not move forward quickly before striking him. [24] The first part of the test set out by the Supreme Court of Canada in R. v. Sault Ste. Marie, as adopted and applied to this offence in Kozun, is whether the Crown has proved that the driving by the accused was careless. Here, we have pedestrian crossing road adjacent to parking lot, and while walking directly in front of stopped vehicle, he is then struck by that vehicle as it rolls forward into him. Viewed objectively, and before considering any explanation from and on behalf of Mr. Tynadall, am satisfied that this driving was careless. [25] The second part of the Sault Ste. Marie test is whether Mr. Tyndall has shown, on balance of probabilities, that he exercised due diligence, or took reasonable care, on this date. Based on his evidence, and the findings of fact have made, am so satisfied. In particular, I accept that his vehicle rolled forward only a short distance of not more than one foot, and not at a fast or accelerating speed, that Mr. Kachur was directly in front of the police vehicle and was crossing the parking lot road outside of the cross-walk, and that Mr. Tyndall - without having applied any force to his accelerator peddle - immediately applied his brake when he saw Mr. Kachur, and immediately took steps both to assist Mr. Kachur by asking if he required an ambulance, and to have other officers attend at the scene. [26] In conclusion, I am satisfied, on a balance of probabilities, that, given the situation Mr. Tyndall found himself in, he could not have reasonably anticipated that a person would have been so close in front of him, and further that Mr. Tyndall did exercise due diligence both before and after striking Mr. Kachur. [27] As a result I find him not guilty of this charge. Dated at Yorkton, Saskatchewan, on this 11th day of April, 2005. GREEN, R.G., PCJ

The accused is charged with driving without due care and attention contrary to s. 44(1) of the Highway Traffic Act. A pedestrian was crossing a road adjacent to a parking lot and, while walking directly in front of a stopped vehicle, was struck by the vehicle when it rolled forward. HELD: The accused is not guilty. The court accepted the accused's evidence that his vehicle rolled forward only a short distance of not more than one foot and not at a fast or accelerated speed and that the pedestrian was crossing outside of the cross walk and that the accused applied his brakes as soon as he saw the pedestrian. The accused did exercise due diligence.

2_2005skpc38.txt

nan 2001 SKQB 128 D.I.V. A.D. 1998 No. 148 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA BETWEEN: LAYNA KATHLEEN SEGALL (formerly LAYNA KATHLEEN FELLINGER) and RONALD KIM FELLINGER RESPONDENT James J. Vogel for the petitioner Mark H. Hawkins for the respondent JUDGMENT McINTYRE J. March 14, 2001 [1] consent judgment of January 10, 2000 arising out of settlement pre-trial conference provides, inter alia: 2. AND IT IS HEREBY FURTHER ORDERED AND ADJUDGED that the Respondent, Ronald Kim Fellinger, shall have access to the children of the marriage at all reasonable times including the following: a) On alternate weekends from Friday evening at 7:00 p.m. until Sunday evening at 8:30 p.m., to be extended to Monday evening in the event of long weekend.... 3. AND IT IS HEREBY FURTHER ORDERED AND ADJUDGED that the Respondent, Ronald Kim Fellinger, shall pay the Petitioner, Layna Kathleen Segall, for the support, maintenance, and education of the children the sum of $1,000.00 per month, such sum representing basic child support of $774.00 per month and further $226.00 per month for the Respondent's proportionate share of child care costs. For purposes of calculating the child support, the income of the Respondent is set at $59,800.00. Under the terms of the judgment the petitioner has custody of their children, Rikki-Lee, age 12 and Lucas, age 7. [2] On November 23, 2000, the respondent served an application to vary the child support provisions of the consent judgment including his contribution to child care expenses as well as the access provisions. The respondent says his income is reduced and refers to his 1999 tax return indicating an income of $42,386.34. It was the respondent's understanding the children no longer attended institutional daycare. The respondent also noted that he works all day Saturday in the family business and that his mother will not provide child care on Saturdays for him any more as result of an incident between his mother and Rikki-Lee. He says there are no suitable babysitters in the area. As he cannot secure child care for the children while he is at work Saturdays, he wishes to have the specified access portion of the judgment varied so as to provide for access to commence every Saturday evening, continuing to Sunday evening. [3] The petitioner works full time for the Government of Saskatchewan. She also takes university classes. While the children are no longer attending commercial daycare facility the petitioner uses child care services in her home. In 1999 she spent $5,357.80 on child care. She produced child care receipts for 2000 of $2,790.00 plus $1,100.00 which is said to be owed to family member. She also provided detailed evidence as to the child care services that she requires as result of either her work or her pursuit of education. She estimates her child care expenses will be something in excess of $4,000.00 this year. The fact that someone may come into her home to provide child care services as opposed to using commercial child care service is of no consequence. Counsel for the respondent acknowledged that the petitioner would have about $4,000.00 in child care expense. [4] The petitioner says they agreed upon child support in total amount of $1,000.00 per month at the settlement pre-trial conference, not based upon his reported income but rather, to reflect his true income including cash and unreported income. The petitioner says that the most current income tax return of the respondent available at the pre-trial conference was his 1998 tax return which indicated an income of $43,209.40. It was also noted that his prior tax returns never showed reported income of any where near $59,800.00. The petitioner's evidence also indicated lifestyle and spending during the marriage which was inconsistent with his reported income. [5] As noted the respondent's 1999 tax return shows an income of $42,386.00. The respondent suggests his income in 2000 will be $44,000.00. The respondent says that he agreed to child support based upon an income of $59,800.00 because he would receive fairly substantial gifts of money from his father each year. His father died June, 1999 (before the pre-trial conference) and the respondent says he has not received any gifts since that time. He says his mother is not able to afford to help him in the same way as his father did. note the respondent indicates that over the years his father had managed to put away substantial amount of money. His father's will left house in Moose Jaw to one son and the family business to four sons in equal shares, including the respondent. The residue of his estate was left to his wife. The respondent says he did not agree to impute income at the pre-trial conference. He says "I simply agreed to pay child support at this amount". The petitioner says the agreement at the pre-trial was not based on the gifts but rather what she describes as his true income. [6] Pertinent provisions of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) (the "Act") and the Federal Child Support Guidelines (SOR/97-175, as am.) (the "guidelines") include: The Divorce Act 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. (3) court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines. (7) Notwithstanding subsection (3), 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. (8) For the purposes of subsection (7), 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. 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. (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. (5) Before the court makes variation order in respect of custody order, the court shall satisfy itself that there has been change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change. (6.1) court making variation order in respect of child support order shall do so in accordance with the applicable guidelines. The Guidelines 3.(1) Unless otherwise provided under these Guidelines, the amount of child support order for children under the age of majority is (a) the amount set out in the applicable table, according to the number of children under the age of majority to whom the order relates and the income of the spouse against whom the order is sought; and (b) the amount, if any, determined under section 7. 14. For the purpose 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). 15.(1) Subject to subsection (2), spouse's annual income is determined by the court in accordance with sections 16 to 20. (2) Where both spouses agree in writing on the annual income of spouse, the court may consider that amount to be the spouse's income for the purposes of these Guidelines if the court thinks that the amount is reasonable having regard to the income information provided under section 21. 19.(1) The court may impute such amount of income to spouse as it considers appropriate in the circumstances .... Variation of the Access Order [7] Pursuant to s. 17(5) of the Act the onus is on the respondent to satisfy the Court that there has been change in the condition, means, needs or other circumstances of the children so as to warrant variation of that part of the custody order which deals with access. Willick v. Willick, 1994 CanLII 28 (SCC), [1994] S.C.R. 670 requires that any change of circumstance relied upon must constitute material change of circumstance which is defined as "change, such that, if known at the time, would likely have resulted in different terms;" and "that if the matter which is relied on as constituting the material change was known at the relevant time, it cannot be relied upon as basis for variation". [8] The respondent does not suggest that there has been any change in his hours of work or work schedule. What has changed is that his mother is no longer available to provide child care during the day on the Saturday of his access weekends. The respondent lives in less than desirable neighbourhood and says there is no one suitable in the area to babysit the children. He has not satisfied the Court that there are not other child care services available to him. However, irrespective of whether there are other child care services available to the respondent, the fact is that there has been no change in the circumstances of the children since the consent judgment. There is no basis to vary the access provisions of the consent judgment in the manner requested. [9] It is evident from the affidavit material filed by both parties that there is substantial and ongoing conflict between them which affects their ability to make arrangements with respect to the parenting provisions in the consent judgment. As a result there will be an order that the petitioner is not to schedule activities for the children during the respondent's access periods without his consent. There will further be an order that if the respondent chooses not to exercise access during any of his specified access times he is to provide seven days' written notice to the petitioner. If he chooses not to exercise access on Friday night or during the daytime on Saturday, he is to provide the required notice to the petitioner. These orders have been made in order to provide some predictability for the children. It does not constitute a variation of the custody/access regime but rather, specific directions with respect to execution of the custody/access regime. Variation of the Child Support Regime [10] The analysis begins with examining the framework within which the application to vary must be considered. If the parties agreed to impute income to the respondent then the order was made pursuant to s. 15.1(3) of the Act including basic support in table amount based upon the imputed income. If this is the basis of the order the application to vary is to be dealt with under s. 14(a) of the guidelines. The alternative is that it is simply an agreed upon amount that differs from the amount that would be determined in accordance with the applicable guidelines, in which case the order was made pursuant to s. 15.1(7) of the Act and the application is to be dealt with under s. 14(b) of the guidelines. [11] have concluded that it is not necessary to determine which of these two alternate approaches constitutes the basis of the consent judgment as the material question before the Court at this time is the same in both instances. If the parties agreed to impute income the respondent has the onus of satisfying the Court that there has been material change in his condition, means, needs or other circumstances, which if known at the time of the consent judgment, would have resulted in different determination of his income. If the basis of the original order was the imputation of income to the respondent there is no basis to vary just because his subsequent taxable income is less than the imputed income. His taxable income in 1998 was $43,209.40. In 1999 it was $42,386.00 and in 2000 it is anticipated to be $44,000.00. There has been no material change in this regard. The question is whether there has been some other material change of circumstances which would make the income imputed to the respondent inappropriate? [12] If the level of child support was simply an agreed upon amount the question is whether there has been material change in the "condition, means, needs or other circumstances of either spouse or of any child who is entitled to support" pursuant to s. 14(b) of the guidelines. There is no suggested change in the circumstances of either the petitioner or the children. The question is whether there has been any material change in the circumstances of the respondent. Once again there is no material change in the taxable income of the respondent. The questions becomes, in substance, the same as the question posed above. Has there been some other material change of circumstance which would make the agreed upon amount of support inappropriate? [13] The respondent suggests the change of circumstance lies in the fact he says his mother is not able to provide gifts in the same manner as his father did. The question becomes whether the respondent has satisfied the Court that there has been material change in circumstance such that the issue of child support ought to be revisited. In this regard it is noted that the respondent provided no evidence as to the amount, the method or when his father provided him with "gifts" as he describes them. His father passed away prior to the pre-trial conference. The allegation is that he has received no gifts since then and his mother is not able to afford to help him. Without evidence of the earlier gifts there is no means of comparing the present circumstance to the past. The respondent says his mother does not have the means but there is no evidence in this regard. The situation is somewhat akin to that where payor, particularly the self-employed, claim his or her income has changed substantially. The onus is on the individual to provide cogent, and where possible, independent or objective verification of the change of circumstances. This application was brought just ten months after the pre-trial conference. The material does not satisfy the Court there has been any material change in the respondent's circumstances. [14] The application is dismissed with costs to the petitioner fixed in the amount of $1,000.00.

The mother had custody of the 12 and year olds under the terms of the January 10, 2000 consent judgment. The father applied to vary child support in November on the basis of his reduced income. HELD: The application was dismissed with costs to the petitioner fixed at $1,000. The onus is on the applicant to provide cogent, independent or objective verification of change of circumstances. This application was brought 10 months after the pre-trial conference. It was of no consequence that someone may come into the home rather than using commercial day care service. There was no change in the father's hours of work or the schedule. The only change was that the mother was no longer available to provide care during Saturday of his access weekends. The mother was not to schedule activities during the father's access periods without his consent and he was to provide 7 days written notice if he chooses not to exercise access during specified times. This was not a variation of the custody/access regime but rather specific directions to provide some predictability for the children.

e_2001skqb128.txt

J. 1997 Date: [20010911] Docket: [S.H. No. 143464] IN THE SUPREME COURT OF NOVA SCOTIA (Cite as: Haughn et al v. Halifax Regional Board of Police Commissioners et al, 2001NSSC117) BETWEEN: LENARD HAUGHN, TIM MOSHER, KEVIN TELLENBACH, JOE COLLINS, DAVE WORRELL and CHRIS MELVIN and HALIFAX REGIONAL BOARD OF POLICE COMMISSIONERS and VINCENT J. MacDONALD, CHIEF OF POLICE OF THE HALIFAX REGIONAL POLICE SERVICE and MUNICIPAL ASSOCIATION OF POLICE PERSONNEL DECISION HEARD: Before the Honourable Justice A. David MacAdam, in Chambers, at Halifax, Nova Scotia, on July 19, 2001 DECISION: July 19, 2001 WRITTEN RELEASE OF DECISION: September 11, 2001 COUNSEL: Nancy L. Elliott, counsel for the Plaintiffs Terry L. Roane, Q.C., counsel for the Defendants Ronald A. Pink, Q.C., counsel for the Intervenor Date: [20010911] Docket: [S.H. No. 143464] [1] The Halifax Regional Municipality Act, S.N.S. 1995, c. (the “Act”), effective as of April 1, 1996, provided for the amalgamation of the Cities of Halifax and Dartmouth, the Town of Bedford and the remainder of the County of Halifax into the Halifax Regional Municipality (“HRM”). The amalgamation included the joining together of the various municipal police forces under one administration. [2] Prior to amalgamation the plaintiffs, other than Tim Mosher, had all been employed as police officers by the Town of Bedford, each holding the rank of corporal. In February 1994, Bedford decided to eliminate the rank of corporal and these plaintiffs were named to the rank of sergeant. The plaintiff, Tim Mosher, was constable who was promoted to the rank of sergeant in 1995. As sergeants in the Town of Bedford, the plaintiffs were not members of union but were subject to working agreement established between the Town and Liaison Committee on behalf of the sergeants. [3] Some members of the City of Halifax Municipal Police Force, including sergeants, were members of Bargaining Unit represented by the intervenor, Municipal Association of Police Personnel (“MAPP”). Under the collective agreement between MAPP and the City of Halifax, there were provisions designating two pay levels for the classification of sergeant, being Sergeant and Sergeant II. [4] Prior to amalgamation vote was held, pursuant to the Trade Union Act, R.S.N.S. 1989, c. 35 (“TUA)”, of police employees of the various former municipalities to determine the bargaining agent to represent them. On September 27th, 1995, the Labour Relations Board (Nova Scotia)(the “Board”) declared MAPP as the successor trade union in relation to bargaining unit, described as follows: “all police personnel employed by the Halifax Regional Municipality below the rank of Deputy Chief, including Communication Technicians, and other civilian employees performing police functions and former police functions”. Labour Relations Board Order, No. 4277, September 27, 1995 [5] As result, the plaintiffs were to be included in the bargaining unit established pursuant to Labour Relations Board Order, No. 4277. Consequently, as result of amalgamation, on April 1, 1996 the plaintiffs became employees of “HRM” and members of the bargaining unit represented by MAPP. [6] The defendant, Vincent J. MacDonald, who was appointed Chief of Police of the newly constituted police force, on April the 12th, 1996 issued Department Order which provided, among other things, that the plaintiffs would “now be referred to as Sergeant II”. The Order also provided that the titles of the job classifications would not increase or decrease the benefits of the respective ranks but would create two-tier structure within the sergeant rank and members were required to “qualify” for any change in classification from the Sergeant II to the Sergeant level. [7] Although MAPP, in June 1996, filed grievance on behalf of some of the plaintiffs in respect to another issue involving the appropriate rate of pay for police personnel holding acting positions, it advised the plaintiffs it would not support their position that the Order of the Chief of Police constituted demotion. The position of MAPP was that the designation of Sergeant II was “pay level, not rank”. [8] The Halifax Regional Board of Police Commissioners, in response to a letter from the plaintiffs dated January 14, 1997, indicated they supported the decision of the Chief of Police. The Nova Scotia Police Commission (“the Commission”), as a result of a letter from the plaintiff, Lenard H. Haughn, dated October 9, 1996, by response dated November 8, 1996 declined to consider the matter on the basis it had no jurisdiction to convene an investigation or inquiry since there was no evidence any demotion was the result of a disciplinary default. [9] HRM and MAPP had commenced collective agreement negotiations in January 1996, and prior to concluding an agreement agreed the sergeant rank would include the designations of Sergeant and Sergeant II. However, no agreement was reached on the appropriate rates of pay for the designations and the matter was referred to an Interest Arbitration Board. The Interest Arbitration Board, by Award dated November 27, 1997, assigned wages to the sergeant classifications, and subsequently on January 12, 1998, HRM and MAPP signed collective agreement which incorporated the findings of the Interest Arbitration Award, including the classifications of Sergeant and Sergeant II. [10] On December 2, 1997, the plaintiffs initiated this proceeding seeking judicial review of the April 12, 1996 decision of the Chief of Police and the May 29, 1997 decision of the Halifax Regional Board of Police Commissioners on the ground the two-tier system for sergeant violates Section 35(1) of the Regulations made under the Police Act, R.S.N.S. 1989, c. 348. Section 35(1) of the Regulations reads as follows: Every municipal police force may have all or any of the following ranks, but no others: Chief of Police Deputy Chief Staff Superintendent [11] The plaintiffs also claim they were reduced in rank contrary to Regulation 4(3) of the Police Act, which states: No member of municipal force is subject to any penalty, including reduction in rank or dismissal, until after proceedings have been taken pursuant to the Act and these regulations... [12] At issue in this application is whether this Court has jurisdiction to deal with the subject matter of this proceeding. MAPP and the defendants maintain this Court has no jurisdiction, in that the issues are matters which fall within the exclusive dispute resolution process established under the TUA. They say the nature of the dispute arises from the “interpretation, application, administration and potential violation of the terms of collective agreement”, and, therefore, the plaintiffs are bound by the provisions of the collective agreement pursuant to s. 41 of the TUA. They add, the plaintiffs are bound by the provisions of s. 42 which provides for final and binding settlement of differences between the parties to or persons bound by collective agreement and the issues raised by the plaintiffs in this proceeding fall within the exclusive jurisdiction of an Arbitrator appointed under the provisions of the collective agreement and the TUA. They also suggest the issues raised by the plaintiffs involve the interpretation of sections of the TUA and in particular, s. 23(7) and s. 35. These sections provide that employers may not increase or decrease rates of wages or alter any other term or condition of employment, in the case of s. 23(7), without consent of the Board, after an application has been made for certification of union as bargaining agent and after certification before notice to commence collective bargaining has been given under s. 33 and in the case of s. 35, without the consent of the bargaining agent, after notice to commence collective bargaining has been given under s. 33 or s. 34. [13] MAPP and the defendants also note that pursuant to s. 43(1)(e) of the TUA an arbitrator or arbitration board has jurisdiction to interpret and apply the provisions of other statutes that affect relations between parties to collective agreement. [14] The plaintiffs, on the other hand, and as summarized in the agreed statement of facts filed by the parties on this application, maintain the court has jurisdiction to hear the matter on the basis of the following grounds: 1. Sections 41 and 42 of the Trade Union Act do not apply because the cause of action pre-dates the collective agreement; 2. If there is conflict between the Police Act and any other Act or collective agreement, the Police Act prevails; 3. The terms and conditions of employment during the statutory freeze prior to the signing of the first collective agreement between MAPP and HRM included the rights of the Plaintiffs to pursue their common law rights in the courts; 4. The dispute in its essential character does not arise out of the collective agreement but instead centres on the meaning of the Police Act Regs. 4(3) and 35(1); 5. The exclusivity of the bargaining agent is not applicable because police officers’ rights under the Police Act are individual rights as opposed to collective rights. Also, any individual who can establish standing has right to challenge whether statute has been violated. [15] Counsel for the defendants on an earlier application by the defendants to dismiss the plaintiffs’ action on the basis the court lacked jurisdiction referenced statements by the Supreme Court of Canada adopting the “exclusive jurisdiction” model in respect to the interpretation and application of collective agreements and trade union legislation. Her submission reads: The Supreme Court of Canada adopted and has held scrupulously to an “exclusive jurisdiction” model since at least 1975 when Laskin, C.J. wrote the decision for the majority in McGavin Toastmaster Limited and Ainscough, 1975 CanLII (SCC), [1976] S.C.R. 718. It was decided in McGavin that individual contracts/rights (whether pre-existing or not) are fully replaced by the collective agreement and the Union’s status as exclusive bargaining agent under labour relations legislation: do not think that in the face of labour relations legislation such as existed at the material time in British Columbia, in the face of the certification of the union, of which the plaintiffs were members, as bargaining agent of specified unit of employees of the company and in the face of the collective agreement in force between the union and the appellant company, it is possible to speak of individual contracts of employment and to treat the collective agreement as mere appendage of individual relationships. The majority of this Court, speaking through Judson J. in Syndicat catholique des employés de magasins de Québec Inc. v. Compagnie Paquet Ltée, at p. 212, said this in situation where union was certified for collective bargaining under Quebec labour relations legislation: There is no room left for private negotiation between employer and employee. Certainly to the extent of the matters covered by the collective agreement, freedom of contract between master and individual servant is abrogated. The collective agreement tells the employer on what terms he must in the future conduct his master and servant relations. [16] In her submission on this application counsel notes the recent decision of the Nova Scotia Court of Appeal in Pleau v. Canada (Attorney General) (1999), 181 N.S.R. (2d) 365, in which Justice Cromwell, on behalf of the court, set out three interrelated considerations governing the determination whether court should decline jurisdiction in favour of the grievance/arbitration process. She notes from paras. 50-52: First, consideration must be given to the process for dispute resolution established by the legislation and collective agreement. Relevant to this consideration are, of course, the provisions of the legislation and the collective agreement, particularly as regards the question of whether the process is expressly or implicitly regarded as an exclusive one. Language consistent with exclusive jurisdiction, the presence or absence of privative clauses and the relationship between the dispute resolution process and the overall legislative scheme should be considered. Second, the nature of the dispute and its relation to the rights and obligations created by the overall scheme of the legislation and the collective agreement should be considered. In essence, this involves determination of how closely the dispute in question resembles the sorts of matters which are, in substance, addressed by the legislation and collective agreement. What is required is an assessment of the “essential character” of the dispute, the extent to which it is, in substance, regulated by the legislative and contractual scheme and the extent to which the court’s assumption of jurisdiction would be consistent or inconsistent with that scheme. Third, the capacity of the scheme to afford effective redress must be considered. Simply put, the concern is that where there is right, there ought to be remedy. [17] Counsel then continues: Applying those principles to the facts in Pleau, the Court of Appeal concluded that the Statement of Claim should not be struck out. The Court of Appeal based its decision on finding that the grievance procedure in that collective agreement and/or mandated by the governing legislation (the Nova Scotia Public Service Staff Relations Act), did not create an exclusive mechanism for the resolution of the plaintiff’s dispute. The Court of Appeal concluded that the collective agreement did not explicitly or by reference govern the substance of the dispute in Pleau and, given the structure of the Act and the fact that third party had no independent right to challenge the outcome of the grievance procedure, decided that no adequate form of redress existed. The Defendants submit that, although the principles enunciated by the Court of Appeal apply...the facts in the two cases are substantially different and necessarily lead to different conclusion. Specifically, the applicable legislation in this case (the Trade Union Act, R.S.N.S. 1989, c. 475) and the Collective Agreement between the Defendant Halifax Regional Municipality and MAPP, differ significantly from the legislation and collective agreement considered in Pleau in that they establish an exclusive arbitration process which encompasses the allegations made by the Plaintiffs in this proceeding. [18] Counsel for the plaintiffs, on the other hand, after referencing the decision of Justice Cromwell in Pleau v. Canada (Attorney General), supra, responds: The collective agreement does set out grievance and arbitration process. However, it is clear from the collective agreement that there is also an alternate forum for some matters: Article of the 1997-1999 collective agreement...explicitly provides that all disciplinary and non-disciplinary matters which affect the employment status of police officer shall be dealt with in strict accordance with the procedural and substantive requirements for discipline as set out in the Police Act and its regulations. The exclusivity of the grievance/arbitration process does not exist for police officers. However, from the plaintiffs perspective the more compelling of the considerations set out by Justice Cromwell are the latter two. The substance of the dispute in its essential character is dispute over the meaning of the Police Act and its regulations. From the plaintiffs’ review, it does not appear that the collective agreement includes any provisions regarding the demotion of police officer who falls under the Police Act. The collective agreement does, however, include provision for non-police officers: “The Region shall show just cause to demote, suspend, or discharge, for disciplinary and non-disciplinary reasons, members who are not included under the Police Act.”.. It would appear that the parties did not contemplate demotions except under proceedings taken under the Police Act. Further, even if the parties had explicitly agreed that demotions could take place for administrative reasons, the plaintiffs would still say such an agreement constitutes violation of the Police Act. union and an employer cannot simply agree to establish provisions within collective agreement that violates statute and thereby become impervious to challenge. There must be some means for union member to challenge provisions in collective agreement where they believe statute has been contravened. For example, if an employer and union put provision in collective agreement that constitutes discrimination under the Human Rights Act, then an employee can take complaint before the Human Rights Commission. It is submitted that likewise, if police officer believes union and an employer have put provisions in collective agreement which violate the Police Act, there must be means of having that dispute heard. The plaintiffs claim the ranks of Sergeant and Sergeant II were not permitted under the Police Act regulations... The essential character of the dispute arises out of the legislation, not the collective agreement. This is especially so when it is considered whether there is an effective remedy. The Defendants and Intervenor have suggested the plaintiffs could have brought an action against MAPP for failure to represent. However, such an action, if successful, would only have provided the plaintiffs’ damages it would not have remedied any statutory violations. Such result can hardly be said to be an effective remedy. [19] As noted by counsel for the intervenor, in her submission of November 17, 1998, s. 23(7) of the TUA provides “statutory freeze” on terms and condition of employment once an application for Certification has been made and s. 35 provides “similar statutory freeze in terms and conditions of employment where notice to commence collective bargaining has been given”. Subsection (b) of s. 35 recognizes an exception where the employer is able to obtain the consent of the “certified or recognized bargaining agent” or the ”Board” to alter terms and conditions of employment. Counsel also suggests s. 36 makes it clear that the bargaining agent has exclusive authority to represent employees in bargaining unit in circumstances where an alleged breach of terms and conditions of employment has occurred. [20] Section 36 of the TUA provides that where the Minister of Labour of the Province of Nova Scotia, receives complaint from party to collective agreement that another party to the collective bargaining has failed to comply with s. 35, they may refer the complaint to the Board and, in such circumstance, the Board is to inquire into the complaint and to do all things necessary to ensure compliance with s. 35. Section 36, therefore, vests jurisdiction in the Board to make the determination as to whether or not there has been violation of s. 35, and secondly, to fix the appropriate remedy. [21] Counsel references the decision of Chair Christie of the Board, in Order No. 2372, dated June 13, 1977, involving the Kentville Hospital Employees Association and Kentville Hospital Association, as to the purpose of s. 35 in “maintaining the status quo”. The purpose of Section 33(b) (now Section 35(b)) is to maintain the status quo between an employer and his employees once notice to bargain has been given. The employer may not increase or decrease wages or “alter any other term or condition of employment” without the consent of the certified bargaining agent because to allow him to do so is inconsistent with the collective bargaining regime to which he had become subject by certification. In cases of hardship the consent of the Labour Relations Board is made available. That does not mean, however, that the general terms of employment already in force should not be given effect in relation to specific employees... [22] Counsel for the intervenor, in her submission, continues: The Intervenor submits...the question of whether term or condition of employment was changed by the employer is one within the exclusive jurisdiction of the Labour Relations Board as set out in the provisions of Section 35 and 36 of the Trade Union Act. The exclusive bargaining agent has the authority to either consent to change, or alternatively to make complaint to the Minister of Labour. The employer does not need to obtain the consent of individual employees for any change to terms and conditions of employment. The ability to consent has been transferred, by the Trade Union Act, to the certified bargaining agent. Whether the ability to pursue breach of an employment contract was part of terms and conditions of employment prior to certification, clearly the Trade Union Act has taken away that right of individual employees. It is not matter of the union and the employer “agreeing to take away common law rights prior to the conclusion of collective agreement”. It is expressly contemplated by Section 35 and 36 of the Trade Union Act. Employees are not left without remedy. They may raise the issue of whether term or condition of employment has been changed with the exclusive bargaining agent. If the union goes not agree that term or condition of employment has been changed, then it may decide not to refer the matter to the Minister of Labour. If the union agrees that term or condition of employment has been changed, it may make complaint to the Minister of Labour. Alternatively, if the Union agrees that term or condition of employment has changed, the union might decide not to make complaint, but rather to agree to the change with the employer. In all cases, the certified bargaining agent makes those determinations, not the individual employees. If the employees do not like the actions of the certified bargaining agent, they have options like application for de-certification, or to sue the union for breach of its common law duty to represent employees. Employees are not left without remedy. [23] As noted, amalgamation occurred effective April 1st, 1996, although, as agreed in the agreed statement of facts, collective agreement negotiations between HRM and MAPP had commenced in January 1996. The plaintiffs are correct, that in September 1995 when the Board declared MAPP as the successor trade union in relation to the bargaining unit to be composed of former police personnel of the various municipal units, and at the time negotiations for collective agreement commenced in January 1996, they were not employees of HRM. This only occurred on April 1, 1996. However, on that date they did become employees; they did become members of the bargaining unit and were such on April 12, 1996 when Chief MacDonald issued the Department Order. The “status quo” provided for in s. 35 of the TUA therefore may be applicable. Whether the Order violated the provisions of the TUA, the Police Act or any employment rights of the plaintiff is matter to be resolved having regard to the procedures for such resolution established in the applicable labour relations legislation. [24] If the plaintiffs are correct in asserting ss. 41 and 42 of the TUA do not apply, because the order of the Chief of Police predated the collective agreement, or there is conflict between the Police Act and another Act or the collective agreement, or the statutory freeze contained in the TUA, does not preclude the plaintiff pursuing any common law rights in the courts, or that the dispute in its essential character does not arise out of the collective agreement but rather pursuant to the Regulations under the Police Act, or that the exclusivity of the bargaining agent provisions in the TUA are not applicable because the plaintiffs’ rights as police officers under the Police Act are individual as opposed to collective rights, these are matters that involve the threshold question of whether the question is itself arbitrable. As such, the decision of Justice Cromwell of the Nova Scotia Court of Appeal in Nova Scotia Union of Public Employees, Local v. Halifax Regional School Board (1999), 1998 CanLII 3382 (NS CA), 171 N.S.R. (2d) 373, is informative as to the appropriate approach to be taken when there is such threshold question. [25] Recognition of the central role of the arbitration process in the scheme of collective bargaining labour relations was noted by Justice Cromwell in referencing the decision of Justice Estey, for the court, in St Anne-Nackawic Pulp and Paper Co v. C.P.U. Local 219, 1986 CanLII 71 (SCC), [1986] S.C.R. 704, at p. 721: What is left is an attitude of judicial deference to the arbitration process. ... It is based on the idea that if the courts are available to the parties as an alternative forum, violence is done to comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in labour relations setting. Arbitration ... is an integral part of that scheme, and is clearly the forum preferred by the Legislature for resolution of disputes arising under collective agreements. (emphasis added) [26] Justice Cromwell, at para. 22, continues: In the cases of Weber and O’Leary, supra, the court has reaffirmed this view. Those cases establish an “exclusive jurisdiction” model for analyzing the effect of final and binding arbitration clauses. This model holds that, if the difference between the parties arises from their collective agreement, arbitration is the exclusive process for its resolution; the courts have no concurrent jurisdiction: see e.g., Weber v. Ontario Hydro, supra at p. 956 [S.C.R.]. The court has reinforced this approach by stressing that, in determining whether the dispute arises from the collective agreement, its essential character, not simply its legal characterization, must govern: see Weber at p. 956 [S.C.R.]. conclude, therefore, that the pre-eminent role of the arbitration process is not simply product of particular provisions, but is central aspect of the overall scheme of collective bargaining labour relations. [27] In the present circumstance, MAPP has consented to the order of the Chief of Police and this consent is evidenced by the fact the classifications were included in the Collective Agreement entered into on January 12, 1998. It would appear, as observed by Justice Cromwell in Nova Scotia Union of Public Employees v. Halifax Regional School Board, supra, that as there, there has here been no determination by any arbitrator whether the complaints set out in the statement of claim are in fact arbitrable. Justice Cromwell, at para. 32, continues: This is an important aspect of the question of whether the court has jurisdiction. The interests of ensuring that matters do not fall between the two jurisdictions are better served by having determination of arbitrability made first at arbitration. In that way, the court will know when it rules on the question of its jurisdiction the full implications of its decision. [28] Justice Cromwell then continues at para. 33: In my view, each of the four factors just discussed supports the conclusion that, where there is doubt about the arbitrability of the dispute, that issue should generally be determined initially at arbitration. This view is mandated by the text of the collective agreement and the Trade Union Act. It also best reflects the central role of arbitration in collective bargaining labour relations, recognizes that arbitration is the forum best suited to conducting the necessary inquiry and helps ensure that no one, absent sound reasons, will be left with rights but no effective remedy. [29] In addressing the limits of the court’s jurisdiction, including where the union declines to proceed with an individual employee’s grievance or settles it against the employee’s wishes, Justice Cromwell at paras. 27 and 28, comments: think it is of fundamental importance in Weber that the limits of court jurisdiction can only be understood in light of the breadth of arbitral jurisdiction. Weber was not case in which it was suggested that neither the arbitrator nor the court would have jurisdiction to determine the rights of the parties. This is underlined by McLachlin, J.’s quotation in Weber from St Anne-Nackawic to the effect that matters “addressed and governed” by the collective agreement should not be pursued in the courts and that the courts should not be “duplicative forum” (at pp. 952-953 [S.C.R.]). In Weber, there was no question that the grievance was arbitrable. grievance was, in fact, pursued and settled. The question was which forum had jurisdiction. It was not suggested or contemplated that neither had jurisdiction. Of course, arbitral and court jurisdiction are not always the mirror image of each other; the correlation is not exact. In some cases, court action may be barred even though there is no remedy available through the arbitration process. For example, if grievance is time barred, there may be no remedy available at arbitration and yet the court may also decline jurisdiction: Piko v. Hudson’s Bay Co. (1997), 24 O.T.C. 238 (Gen. Div.). Similarly, union may decide not to proceed with an individual employee’s grievance or settle it against the employee’s wishes and yet the court may not take jurisdiction in the individual’s court action raising essentially the same complaint: Bhairo v. Westfair Foods Ltd. (1997), 1997 CanLII 17826 (MB CA), 118 Man.R. (2d) 172; 149 W.A.C. 172; 147 D.L.R. (4th) 521 (C.A.); Callow v. Board of Education of School District No. 45 (West Vancouver) et al. (1997), 1997 CanLII 4147 (BC CA), 86 B.C.A.C. 241; 142 W.A.C. 241; 29 B.C.L.R. (3d) 199 (C.A.). The premise of such decisions is that all of the employees’ rights, substantive and procedural, in the given area are exhaustively codified in the collective agreement. There are no others to be asserted in court. [30] Justice Cromwell, at para. 36 concludes his summary by stating: ...absent sound reasons to the contrary, courts should apply the general principle that arbitration, and not the court, is the forum for the initial determination of whether matter is arbitrable. [31] In concluding, at para. 37, he adds: Whether or not an arbitrator finds this dispute arbitrable at the end of the day, it is more respectful of the processes adopted by the parties and the Legislature and in the interests of sound decision-making in this key area of labour relations law to have the matter first addressed at arbitration in light of all the facts and circumstances of the particular situation. The arbitration process is better suited to that exercise. [32] During the course of argument, it was suggested the plaintiffs may yet have right to argue before the Commission that HRM has violated the Act. Whether the plaintiffs have such right and whether given such right their argument has merit, are not matters before this court. Nothing in these reasons is intended directly or indirectly to suggest the plaintiffs do or do not have such right or whether HRM has or has not violated the Act. Nor is it relevant if the plaintiffs have now, for any reason, lost the right to initiate the arbitration process. The only issue before this court is whether there is jurisdiction to entertain the proceeding brought by the plaintiffs and, having concluded there is no jurisdiction, it is not for this court to comment on the merits or lack of merits of the position of any party in the event any such alternative proceeding may be brought, nor not having been brought in time, has now been lost. [33] Justice Cromwell, in Nova Scotia Union of Public Employees v. Halifax Regional School Board, supra, at para 40, in addressing the question of whether the appropriate relief was to stay or strike the proceeding, made the following comments: In this case, have addressed only one question. It is whether the court action should not proceed because an arbitrator, and not court, should determine at first instance the issue of arbitrability. In light of my conclusion, it is not necessary for me to address the broader aspect of the employer’s substantive argument that the court has no jurisdiction regardless of the conclusion of the arbitrator on the question of arbitrability. That issue not having been decided in this appeal, it will be open to the parties to raise it again in the future, if for example, an arbitrator finds the dispute not to be arbitrable. Out of an abundance of caution that these reasons not be seen as settling anything other than the narrow issue which they address, think the wise course is to direct stay of the action which could be lifted by judge of the Supreme Court in appropriate circumstances in the future. So as to avoid the possibility of the action being suspended indefinitely, would add the proviso that if no application is made to lift the stay within two years of today’s date, the action will stand dismissed. [34] Similarly, the only issue addressed in these reasons is whether this court action should not proceed because an arbitrator has not, in the first instance, determined the issue of arbitrability. Broader issues as to the substantive rights of the plaintiffs, if any, have not been addressed. As a consequence, I would, as Justice Cromwell did, stay the present proceeding, pending submission to arbitration or any other form of proceeding that is permitted under the statutory enactments applicable to the parties and the disputes in question. Also, so as to avoid the possibility of this action being suspended indefinitely, I would add the proviso that if no application is made to lift the stay within two years of the date of these reasons, then this action will stand dismissed.

The plaintiffs were Sergeants in the Town of Bedford Police Department. Following amalgamation and before any collective agreement was concluded, the Chief of the amalgamated force issued a department order declaring that all persons in the position of the plaintiffs would be referred to as a level two Sergeant which created a two-tier structure within the Sergeant rank. The bargaining agent for the union declined to process a grievance on behalf of the plaintiffs and agreed with the two-tiered structure which was eventually incorporated into the collective agreement. After unsuccessfully complaining to the Nova Scotia Police Commission and the Halifax Regional Board of Police Commissioners, the plaintiffs commenced an action alleging that the creation of the two-tiered structure was a violation of the Police Act and adversely affected their employment rights. The intervenor union brought an application to strike the plaintiffs' proceeding on the basis that the court lacked jurisdiction to hear the matter. Application granted; proceeding stayed pending submission to arbitration or any other form of proceeding that is permitted under the statutory enactments applicable; if no application is made to lift the stay within two years, the action will stand dismissed. Where there is a threshold question of whether the dispute is arbitrable, that decision should initially be made, absent very limited exceptions, by an arbitrator and not by the court. It is irrelevant if the plaintiffs have now lost their rights to initiate the arbitration process.

3_2001nssc117.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 155 Date: 2013 04 23 Docket: Q.B.C. No. 30 of 2012 Judicial Centre: Melfort BETWEEN: HER MAJESTY THE QUEEN, and DELREE EMIL FLETT, Counsel: W. Dean Sinclair for the appellant Rosanne Newman, Q.C. for the respondent JUDGMENT ACTON J. April 23, 2013 [1] This is an appeal from the decision of the Provincial Court dismissing an application for a recognizance pursuant to s. 810.2 of the Criminal Code, R.S.C. 1985, c. C-46. The issue is whether the usual rules of evidence pertaining to criminal trials apply to s. 810 hearing. The Provincial Court judge ruled that the usual rules of evidence pertaining to criminal trials did apply and that hearsay evidence was inadmissible. [2] The judge also held that records kept by the Correctional Service of Canada (CSC) were inadmissible as business records under s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5. In reaching this decision the judge relied upon R. v. Fontaine, 2010 SKPC 16 (CanLII), 356 Sask.R. 229, which held that hearsay evidence is not admissible in s. 810.2 hearing. The judge also relied on R. v. Toulejour, 2012 SKPC 86 (CanLII), 398 Sask.R. 292, which reiterated the position that hearsay evidence is not admissible in s. 810.2 hearing and held as well that CSC documents are not admissible under the business record exception to the hearsay rule as enacted by s. 30 of the Canada Evidence Act. [3] The appellant submits that these are errors in law in that the usual criminal rules of evidence do not apply in s. 810 hearings. Even if the usual rules applied the judge erred in failing to follow previous decisions of this court which held that CSC documents are admissible business records under s. 30 of the Canada Evidence Act. SUMMARY OF THE FACTS [4] On March 5, 2009, the respondent was convicted of robbery with violence, assault causing bodily harm, assault and three counts of violating bail. He was sentenced to three years imprisonment. [5] In May 2010, the CSC referred the respondent’s case to the National Parole Board (NPB) with recommendation that he be detained until warrant expiry. The referral was made in accordance with s. 129(2) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA), in document entitled Assessment for Decision. Section 129(2) provides that the CSC must refer case to the NPB for detention hearing if the offender is serving sentence on Schedule offence, such as robbery, assault causing bodily harm or assault, the offence caused serious harm to another person and there are reasonable grounds to believe the offender is likely to commit another offence causing death or serious harm if he is released on parole. [6] On November 9, 2010, the NPB ordered the respondent be detained in custody until the sentence expired. The order was made pursuant to s. 130(3) of the CCRA. [7] Detention orders must be reviewed annually according to s. 131(1) of the CCRA, so the CSC prepared another assessment for decision in 2011 for the purposes of the annual review. The Board confirmed the detention order on October 5, 2011. As consequence, the respondent was not released from custody until the sentence expired in March 2012. [8] The NPB is required to give written reasons for any decision it makes and provide copy of those reasons to the offender. The NPB provided copies of its reasons to the respondent in November 2010 and in October 2011. The NPB also sent copies of its reason to the CSC. [9] Section 25(3) of the CCRA directs the CSC to provide police with relevant information about an offender who is going to be released on warrant expiry if the CSC believes the offender poses threat to any person. As consequence of that law, Karen Johansen, parole officer employed by the CSC, compiled package of CSC records relating to the respondent. She sent these records to Corporal Brian Haswell. Cpl. Haswell is the High Risk Violent Offender Unit Coordinator for the RCMP in Saskatchewan. [10] This package of materials may be conveniently referred to as the “warrant expiry package”. In this case, the warrant expiry package included criminal profile report, the assessment for decision reports and copies of the Board’s reasons for ordering detention. [11] Based upon his review of the records, Cpl Haswell swore the information under s. 810.2 of the Criminal Code stating that based upon his review of the file he believed there were reasonable grounds to believe that the respondent would likely commit serious personal offence as defined in s. 752 of the Criminal Code. [12] The application was set for hearing which commenced in August 2012. The Crown called two witnesses. Karen Johansen was called to identify the contents of the warrant expiry package as CSC records and to testify about the contents of some of those documents. Corporal Haswell was called to testify that he reviewed the warrant expiry package and swore the information. [13] The Crown applied to have the criminal profile report, the assessment for Decision reports and the NPB’s reasons for ordering detention admitted into evidence. The defendant opposed the admission of these documents. [14] The court decided as stated earlier based on R. v. Fontaine, supra, and R. v. Toulejour, supra, that the normal criminal rules of evidence apply to s. 810 hearings. The judge refused to allow the admission of the criminal profile report and the assessment for decision reports as well as NPB reasons for ordering detention. Respecting the business rules exception the judge held that the criminal profile report was inadmissible because it was copy and copy is only admissible if it is accompanied by supporting affidavits as described in s. 30(3) of the Canada Evidence Act. [15] Section 30(3) states: (3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), copy of the record accompanied by two documents, one that is made by person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy’s authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is (a) an affidavit of each of those persons sworn before commissioner or other person authorized to take affidavits; or (b) certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. [16] The Provincial Court judge ruled that the NPB’s written reasons for detaining the respondent in November of 2010 and October 2011 were inadmissible because they were not signed. For this she relied on s. 145 of the CCRA in support of the conclusion which states: 145. decision, order, warrant or certificate purporting to be signed by member of the Board or person designated by the Chairperson of the Board is admissible in any court and is evidence of its contents without proof of the signature or official character of the person appearing to have signed it. [17] With respect to the assessment for decision reports, the court ruled that they were inadmissible because they were created for litigation purposes as referred to in s. 30(10)(a)(ii) of the Canada Evidence Act which states: (10) Nothing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be ... (ii) record made in the course of obtaining or giving legal advice or in contemplation of legal proceeding, ... [18] Section 810.2 of the Criminal Code has always been accepted as crime prevention measure. Numerous cases have confirmed the admissibility of hearsay evidence in s. 810 hearings. [19] These include: R. v. Budreo (2000), 2000 CanLII 5628 (ON CA), 142 C.C.C. (3d) 225, 183 D.L.R. (4th) 519 (Ont. C.A.), wherein the Ontario Court of Appeal stated at para. 52: 52 Moreover, although an informant’s fear triggers an application under s. 810.1, under subsection (3) recognizance order can only be made if the presiding judge is satisfied by “evidence” that the fear is reasonably based. Section 810.1(3) therefore requires the judge to come to his or her own conclusion about the likelihood that the defendant will commit one of the offences listed in subsection (1). Although the “evidence” the judge relies on might include hearsay, recognizance could only be ordered on evidence that is credible and trustworthy. R. v. George, 2007 ONCJ 16 (CanLII), 73 W.C.B. (2d) 45, which states at para. 8: With respect to the issue contested before me, as to the kinds of evidence appropriately put forward on the s. 810 application, am guided by the Court of Appeal decision in R. v. Budreo. The Court was very clear that the kinds of evidence properly received could include hearsay and other secondary information so long as it is “credible and trustworthy”. therefore have no hesitation in proceeding on the basis that such evidence is receivable so as long as exercise due caution in weighing the ultimate value of the information. R. v. MacDougall, 2006 NBPC 23 (CanLII), 306 N.B.R. (2d) 335, which states at para. 18: 18 There are many proceedings in our criminal law and Criminal Code that allow evidence that does not meet the admissibility rules prescribed for criminal trials to be admitted and serve as the basis for decision. By criminal trial admissibility rules, of course, is meant the standard to be met when the burden is proof beyond reasonable doubt. Some examples of what might be referred to as proceedings in which the relaxed standard of admissibility is employed include: 1) sentence hearing during which submissions and evidence are received pursuant to Section 723 of the Criminal Code and disputed evidence is adjudicated upon, pursuant to section 724(3)(b) of the Criminal Code, (with the exception of an aggravating circumstance that is in dispute in which case the circumstance must be proved beyond reasonable doubt pursuant to section 724(3)(e)). See, especially, Section 723(5) of the Code which specifically allows for the admission of hearsay evidence. See, also, R. v. Albright, 1987 CanLII 26 (SCC), [1987] S.C.R. 383 (S.C.C.) 2) An application to detain an accused person in custody at bail hearing. See Section 518(1)(e) of the Criminal Code allowing the admission of evidence considered credible or trustworthy by the judge adjudicating the hearing. See, also, R. v. Julian (1972), 20 C.R.N.S. 227 (N.S.S.C.T.D.); R. v. Wilson, 1997 CanLII 11345 (SK QB), [1997] S.J. No. 610 (S.Q.B.) 3) An application pursuant to Section 742.6 of the Criminal Code that regulates the hearing into an alleged breach of conditional sentence order. See Sections 742.6(4) and (5) of the Code. See, also, R. v. Carpentier (2006), 2005 MBCA 134 (CanLII), 34 C.R. (6th) 395 (M.C.A.) 4) An application to extradite person from Canada to foreign state for prosecution for criminal offence pursuant to Section 29 of the Extradition Act, S.C. 1999 Ch. 18. See, particularly, Sections 32(1)(a) and (b) of the Extradition Act. See, also, United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33 (CanLII), [2006] S.C.J. No. 33 (S.C.C.) at paragraphs 52‑60; 5) An application for firearms prohibition order pursuant to Section 111 of the Criminal Code. See, particularly, Section 111(3) of the Criminal Code that allows for the admission of “all relevant evidence presented by or on behalf of the applicant and the person against whom the order is sought.” See, also, R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.R. 1378 (S.C.C.) at paragraphs 17‑19. 6) An application for peace bond pursuant to section 810 of the Criminal Code in which the standard of proof for the trier of fact is reasonable ground to believe. See, R. v. Budreo, 2000 CanLII 5628 (ON CA), [2000] O.J. No. 72 (O.C.A.) [Emphasis added] R. v. West, [2004] O.J. No. 3243 (QL) (Ont. Sup. Ct.), which states at para. 27 Not only have trial courts been instructed to be more receptive to hearsay at the trial phase of proceedings, but credible hearsay is now routinely relied upon in investigative, pretrial applications such as for search warrants, wiretap and video authorizations, general warrants, firearms prohibitions,” bail hearings, s. 810.01 recognizance hearings and in applications for restrained funds to pay legal fees. See R. v. Allan, 2003 CanLII 1935 (ON SC), [2003] O.J. No. 2466, where Nordheimer J. expressly permitted hearsay evidence in an application for restrained funds. R. v. Falle, 2001 ABPC 36 (CanLII), 285 A.R. 391, which states at para. 13 For the reasons given, direct that the reports of the Corrections Canada officials be entered as exhibits without the necessity of their authors being called. R. v. Teneycke, 2008 SKQB 239 (CanLII), 317 Sask.R. 138, where Justice Rothery stated at para. 8: The Crown did not call the authors of the reports, nor did defence seek to cross‑examine them. As stated in R. v. Falle, [2001] A.J. No. 192, 2001 ABPC 36 (CanLII) at para. 10, this is an acceptable procedure because the reports are made in the normal course of business. Ketchum P.C.J. endorsed the observations of Martin J. in R. v. Bilida 1999 ABQB 1016 (CanLII); (1999), 256 A.R. 336 at para. 5: In my opinion the phrase “satisfied by the evidence adduced” does not require formal sworn evidence such as viva voce evidence commonly called in criminal proceedings. Rather, think the phrase also contemplates information tendered to the court by counsel in the form of oral submissions. ... and most recently, in R. v. Klein, 2011 SKQB 94 (CanLII), 369 Sask.R. 273, where Justice Gerein stated at paras. 21 and 22: 21 Section 810 does not create criminal offence, but rather it seeks to prevent the commission of criminal offence. It is preventative rather than punitive. The burden of proof rests upon the Crown and requires proof on balance of probabilities. 22 The test is both subjective and objective. It must be established (1) that the victim actually fears personal injury and (2) that there are reasonable grounds for the fear. See R. v. Banks, 1995 CanLII 5974 (SK QB), [1995] W.W.R. 698, 129 Sask. R. 147 (Q.B.) at paras. 18 to 22; and more recently, R. v. MacLeod, 2005 BCPC 108 (CanLII), (2005) (P.C.), [2005] B.C.J. No. 798, (QL) wherein at para. this summary is found: The burden of proof is that the applicant under s. 810 is not required to prove beyond reasonable doubt, but rather prove on balance of probabilities. The test is twofold: the Crown must establish (1) that the informant actually fears that the defendant will cause personal injury to him; and (2) reasonable grounds exist for the informant's fear. The first condition is subjective, while the second is objective; namely, the Crown must establish subjectively the informant's belief and whether his belief is objectively founded. [20] Gerein J. also sets out that the standard of review is correctness on question of law. [21] It is also noted in R. v. Budreo in referring to s. 810.1 which is similar to s. 810.2 wherein it states at paras. 29 To characterize s. 810.1 as punitive, as creating an offence, the appellant would have to show that its purpose is “to mete out criminal punishment” or that it has “true penal consequence.” true penal consequence, according to the Supreme Court of Canada in R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] S.C.R. 541, is “imprisonment or fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large ...” 30 By these standards, s. 810.1 does not create an offence. Its purpose is not to punish crime but to prevent crime from happening. Its sanctions are not punitive, nor are they intended to redress wrong; they are activity and geographic restrictions on person's liberty intended to protect vulnerable group in our society from future harm. [Emphasis added] [22] The issue has also been dealt with by the Supreme Court of Canada in similar provisions of the Criminal Code, which are preventative and relate specifically to firearms prohibition hearings under s. 98 of the Criminal Code. In R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.R. 1378, 50 C.C.C. (3d) 566, the Supreme Court stated at para. 16: 16 Section 98(4) enables peace office acting on reasonable grounds to apply to the provincial court judge for an order prohibiting particular person from possessing firearm. Clearly, the peace officer is not required to act solely on the basis of evidence that would be admissible at trial ... At the hearing of the application pursuant to s. 98(6), the provincial court judge must be satisfied that there are reasonable grounds to believe that it is not desirable in the interests of the safety of the person or of others that the subject of the prohibition application should possess firearm. The provincial court judge thus confirms the existence of the reasonable grounds which led the peace officer to launch the application. In my opinion, it was not intended that the provincial court judge strictly apply the rules of evidence. [23] The Supreme Court of Canada in Zeolkowski clearly established that the burden of proof was on balance of probabilities which also applies with respect to s. 810.2 hearing wherein they stated at para. 17 It is also relevant to note that the burden which the applicant bears at the hearing is not that of proof beyond reasonable doubt, but simply proof on balance of probabilities. In R. v. McWhirter, Hart J.A., for the court, took note of this reduced standard in reaching the conclusion, at p. 186, that “... although these proceedings arise under the Criminal Code Parliament did not intend that they be conducted in the manner of criminal trial”. agree with this conclusion. [24] These decisions at all court levels up to and including the Supreme Court of Canada confirm that s. 810 hearings are not criminal trials. The usual rules of evidence applicable in criminal trials do not apply. Hearsay evidence is admissible. The question before the judge is to determine whether or not sufficient weight can be given to the hearsay evidence to establish the reasonable and probable grounds required for the individual to swear the information to justify the fear of harm to others by the respondent. Business records exception, s. 30 of the Canada Evidence Act [25] Section 30 of the Canada Evidence Act states: Business records to be admitted in evidence (1) Where oral evidence in respect of matter would be admissible in legal proceeding, record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record. Inference where information not in business record (2) Where record made in the usual and ordinary course of business does not contain information in respect of matter the occurrence or existence of which might reasonably be expected to be recorded in that record, the court may on production of the record admit the record for the purpose of establishing that fact and may draw the inference that the matter did not occur or exist. Copy of records (3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), copy of the record accompanied by two documents, one that is made by person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy’s authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is (a) an affidavit of each of those persons sworn before commissioner or other person authorized to take affidavits; or (b) certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. Where record kept in form requiring explanation (4) Where production of any record or of copy of any record described in subsection (1) or (2) would not convey to the court the information contained in the record by reason of its having been kept in form that requires explanation, transcript of the explanation of the record or copy prepared by person qualified to make the explanation is admissible in evidence under this section in the same manner as if it were the original of the record if it is accompanied by document that sets out the person’s qualifications to make the explanation, attests to the accuracy of the explanation, and is (a) an affidavit of that person sworn before commissioner or other person authorized to take affidavits; or (b) certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. Court may order other part of record to be produced (5) Where part only of record is produced under this section by any party, the court may examine any other part of the record and direct that, together with the part of the record previously so produced, the whole or any part of the other part thereof be produced by that party as the record produced by him. Court may examine record and hear evidence (6) For the purpose of determining whether any provision of this section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record. Notice of intention to produce record or affidavit (7) Unless the court orders otherwise, no record or affidavit shall be admitted in evidence under this section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by that party. Not necessary to prove signature and official character (8) Where evidence is offered by affidavit under this section, it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit. Examination on record with leave of court (9) Subject to section 4, any person who has or may reasonably be expected to have knowledge of the making or contents of any record produced or received in evidence under this section may, with leave of the court, be examined or cross‑examined thereon by any party to the legal proceeding. Evidence inadmissible under this section (10) Nothing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be (i) record made in the course of an investigation or inquiry, (ii) record made in the course of obtaining or giving legal advice or in contemplation of legal proceeding, (iii) record in respect of the production of which any privilege exists and is claimed, or (iv) record of or alluding to statement made by person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding matter disclosed in the record; (b) any record the production of which would be contrary to public policy; or (c) any transcript or recording of evidence taken in the course of another legal proceeding. Construction of this section (11) The provisions of this section shall be deemed to be in addition to and not in derogation of (a) any other provision of this or any other Act of Parliament respecting the admissibility in evidence of any record or the proof of any matter; or (b) any existing rule of law under which any record is admissible in evidence or any matter may be proved. Definitions (12) In this section, affaires “business” means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing function of government; “copy” and “photographic film” copie et pellicule photographique “copy”, in relation to any record, includes print, whether enlarged or not, from photographic film of the record, and “photographic film” includes photographic plate, microphotographic film or photostatic negative; tribunal “court” means the court, judge, arbitrator or person before whom legal proceeding is held or taken; “legal proceeding” procédure judiciaire “legal proceeding” means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration; pièce “record” includes the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced, and, except for the purposes of subsections (3) and (4), any copy or transcript admitted in evidence under this section pursuant to subsection (3) or (4). [26] It has been well established law in Saskatchewan that CSC records similar to the ones submitted and disallowed in the matter under appeal are admissible under s. 30. [27] As stated by Rothery J. in Ross v. Riverband Institution, 2007 SKQB 232 (CanLII), [2007] S.J. No. 359 (QL), at para. 8: Attaching the correctional records as exhibits to the respondents’ affidavits does not offend Rule 319. Furthermore, it has been decided that correctional records are documentary evidence as defined by s. 30(1)of the Canada Evidence Act, R.S.C. 1985, c. C-5 and by the common law. This documentary evidence is an exception to the hearsay rule and admissible. See: R. v. Gregoire (1998), 1998 CanLII 17679 (MB CA), 130 C.C.C. (3d) 65 (Man. C.A.) And see: R. v. Nowdlak, 2005 NUCJ 17 (CanLII), [2005] Nu.J. No. 17 (Nun. C.J.) [28] With respect to the NPB’s written reasons the court determined that they could not be admitted as business records under s. 30 of the Canada Evidence Act unless they also met the requirements of s. 145 of the CCRA that required them to be signed to be admissible. [29] However, s. 30 of the Canada Evidence Act does not require business records to be signed and is not subject to compliance with s. 145. [30] The assessment for decision reports were prepared by the respondent’s institutional parole officer and submitted to the NPB as required under s. 129(2) of the CCRA. These reports are provided to the NPB to assist the Board in making its decision as to whether to retain the respondent until warrant expiry. [31] These reports are required to be made under the CCRA to the NPB. When they are making their decision the inmate is entitled to be present and make representation to the Board. The CSC provides the report based on legislative requirements. The NPB review is not legal proceeding as referred to in s. 30(10)(a)(ii) of the Canada Evidence Act or ss. (12). This is relevant available information which the Board must consider and review in making its decision. The Board does not swear witnesses or hear oral testimony, nor is CSC party to this proceeding. [32] The court accepts as law the decision of R. v. McLarty (No. 3) (1978), 1978 CanLII 2390 (ON CJ), 45 C.C.C. (2d) 184, [1978] O.J. No. 3736 (QL) (Ont. Co. Ct.), which states at para. 10 This leaves finally for consideration whether these documents were prepared “in contemplation of legal proceeding”. Once again derive assistance from the common law and there again, if my recollection is correct, the prohibition with respect to the production of records made in the contemplation of legal proceeding relates only to parties to the legal proceeding, so that one who prepared, in contemplation of legal proceedings report of some sort, cannot be compelled to produce that. Now while what we have here on one view might be considered to be documents prepared in contemplation of legal proceeding, they were not prepared by party to the proceedings. They were prepared by someone whose business it was to engage in the investigation of suspected criminal activities. So that once again it is my opinion that Mr. Ruby's argument is unsuccessful and in the result his argument must fail. [33] As stated CSC is not party to the detention reviews conducted by the NPB. The parole officer is under statutory duty to present all relevant information to the Board. This evidence is not prepared for the purposes of legal proceedings and is admissible under the business records exception. [34] With respect to the criminal profile report, the Crown called witness to testify that the criminal profile reports were prepared in the usual and ordinary course of CSC business. The records are maintained in electronic format and may be accessed by parole officers using computer. The reports are prepared, checked for quality control and then locked into the data base so they cannot be changed or amended. The CSC also maintains paper copy on the offender’s criminal profile report with the paper copy being signed and stored on the inmate’s file. [35] The evidence before the court was that individuals within the CSC rely on the electronic versions of the reports rather than retrieving the paper copies. The judge ruled that if there was signed paper copy of the report then the computer printout of the report was merely copy for the record, and therefore was inadmissible because it did not comply with s. 30(3) of the Canada Evidence Act, as it was not signed. [36] However, courts have determined that carbon copy is just as much record as is the paper copy to which ink has been applied. See R. v. Hall, [1998] B.C.J. No. 2515 (QL) (B.C.S.C.), para. 69, wherein it states: ... Several Courts of Appeal have ruled that carbon copies are admissible as originals, even if they are not the top white copy: R. v. Betterest Vinyl Manufacturing Ltd. (1989), 1989 CanLII 7251 (BC CA), 52 C.C.C. (3d) 441 (B.C. C.A.); R. v. Walsh (1980), 1980 CanLII 2885 (ON CA), 53 C.C.C. (2d) 568 (Ont. C.A.); R. v. Alward (1976), 1976 CanLII 1214 (NB CA), 32 C.C.C. (2d) 416 (N.B. C.A.) at 429. ... [37] R. v. Hall, supra, has also established that when it comes to computer records there is no distinction between electronic version of record stored in the computer and computer printout of the information. As stated by the court in para. 52: 52 For the purposes of this application, am persuaded that the computer records were mechanically created for the respective telephone companies' usual and ordinary business purposes. The information reproduced was recorded as reference source, kept as part of its internal audit system and so kept for that purpose at the relevant time. Insofar as computers are concerned, see no merit in the arguments based on the alleged distinctions between copies and records. In view of the evidence in the case at bar find that distinction is meaningless one. The law must be applied in accordance with the rapidly changing reality of today notwithstanding that it was drafted in the past. For this Court to hold in the context of this application that the printouts were not admissible would be to ignore the realities of the computer age, wherein technological change has rendered the former distinctions between originals and copies moot distraction in many areas. This was also upheld in other more recent decisions. [38] As well, s. 31.2 of the Canada Evidence Act specifically allows the admissibility of electronic documents such as the criminal profile report. [39] Section 31.2 states: 31.2 (1) The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or (b) if an evidentiary presumption established under section 31.4 applies. (2) Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as record of the information recorded or stored in the printout. [40] As noted, CSC personnel rely on this information. It was part of the warrant expiry package provided to the officer who swore the information and on which he was allowed to consider. The court was required to review the information available to the officer to determine if there was sufficient information to justify the swearing of the information on reasonable and probable grounds. [41] It should also be noted that the Provincial Court of Saskatchewan decisions as recent as March 2013 have chosen to follow the authorities and rationale as set forth herein rather than the decisions in R. v. Toulejour and R. v. Fontaine. See the decision of Cardinal P.C.J. in R. v. Arthur Carriere, 2013 SKPC 36 (CanLII), [2013] S.J. No. 142 (QL). [42] This court does allow the appeal for the reasons set forth herein and does direct that the matter be returned for a new hearing of the original application.

The Crown appealed a decision of the Provincial Court dismissing an application for a recognizance pursuant to s. 810.2 of the Criminal Code. The judge held that the usual rules of evidence pertaining to criminal trials apply to a s. 810.2 hearing and that records kept by the Correctional Services of Canada (CSC) were inadmissible as business records under s. 30 of the Canada Evidence Act. The respondent had been convicted in 2009 of robbery with violence, assault causing bodily harm, assault and three counts of violating bail. He was sentenced to three years' imprisonment. In May 2010, the CSC referred the respondent's case to the National Parole Board (NPB) with a recommendation that he be detained until warrant expiry, in accordance with s. 129(2) of the Corrections and Conditional Release Act (CCRA). The recommendation was based upon the character of the respondent's offences and where there are reasonable grounds to believe that the offender is likely to commit another offence causing death or serious harm if released on parole. The NPB ordered that the respondent be detained in custody until the expiry of the sentence. Reviewed annually under the CCRA, the CSC prepared another assessment in 2011 and the respondent was not released from custody until March 2012. At that point, a 'warrant expiry package' was prepared by a parole officer, comprised of CSC records relating to the respondent, including a criminal profile report, the assessment for decision reports and copies of the NPB's reasons for ordering detention. These records were sent to the RCMP in Saskatchewan. The officer concerned then swore the information under s. 810.2, stating that he believed that there were reasonable grounds to believe that the respondent would commit a serious personal offence as defined by s. 752 of the Code. The application for a hearing was commenced in August 2012. The parole officer and the RCMP officer were called to testify and the Crown applied to have the documents in the package admitted into evidence, and the respondent opposed the application. The judge refused to allow the admission of the report, the assessment and the NPB reasons for ordering detention based upon R. v. Fontaine and R. v. Toulejour. Based on the business rules exception, the judge held that the criminal report profile was inadmissible because it was a copy and not accompanied by supporting affidavits as required by s. 30(3) of the CEA. HELD: The Court held that the application was allowed. The Supreme Court had confirmed that s. 810 hearings are not criminal trials and that the rules of evidence in criminal trials do not apply. Hearsay evidence is admissible and the judge is to determine whether or not sufficient weight can be given to the hearsay evidence to establish reasonable and probable grounds required for the individual to swear the information to justify the fear of harm to others by the respondent. The Court held that all of the CSC records submitted as part of the package were admissible under the CEA. The Court directed that the matter be returned for a new hearing of the original application.

c_2013skqb155.txt

55 QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 100 Date: 2011 03 04 Docket: Q.B.G. No. 1865 of 1991 Judicial Centre: Saskatoon BETWEEN: AGRICULTURAL CREDIT CORPORATION OF SASKATCHEWAN and V. JENSEN SONS CO-OPERATIVE STOCKFARM LIMITED and BARRY JENSEN Counsel: Ashley M.M. Smith for Agricultural Credit Corporation of Saskatchewan (ACS) (applicant) Peter V. Abrametz for Eggum, Abrametz and Eggum (respondent) FIAT GOLDENBERG J. March 4, 2011 [1] ACS seeks an order from this court requiring the legal office of Eggum, Abrametz and Eggum to produce to the sheriff of the Judicial Centre of Prince Albert, the shares owned by Barry Jensen in Jen-Sim Cattle Co. Ltd., pursuant to the June 5, 2001 writ of execution ACS has against Barry Jensen, within seven days of service of the order compelling production of the shares. [2] The facts are as follows: a. Judgment in pursuance of an order was granted June 5, 2001 to ACS to recover $72,877.26 plus interest at a rate of 5% per annum from March 22, 2001, against V. Jensen & Sons Co-operative Stockfarm Limited and Barry Jensen (the “Judgment”). b. Writ of execution was issued on June 5, 2001 pursuant to a judgment in the Judicial Centre of Prince Albert (the “ACS Writ”). c. As of September 16, 2010, the balance owing on the judgment was $28,163.97 plus interest. d. On August 11, 2010, ACS performed corporate search at the Saskatchewan Corporations Branch which indicated that Barry Jensen owned all 37 Common shares in Jen-Sim Cattle Co. Ltd. and was the only director and voting shareholder for the corporation. e. From the corporate search ACS determined that the mailing address for the corporation was the legal office of Eggum, Abrametz and Eggum in Prince Albert, Saskatchewan. Based on that information, on September 16, 2010, ACS provided instructions to its solicitors to instruct the sheriff at the Judicial Centre of Prince Albert to immediately seize the Class shares in the name of Barry Jensen from the law office of Eggum, Abrametz and Eggum. f. On September 28, 2010, the sheriff was instructed to seize and sell the shares that Barry Jensen owned in Jen-Sim Cattle Co. Ltd. g. On November 30, 2010, correspondence was received from the sheriff indicating that on November 8, 2010, Eggum, Abrametz and Eggum had been served with seizure schedule and Eggum, Abrametz and Eggum refused to produce and/or allow the sheriff access to the shares. h. Attached to the sheriff’s correspondence was November 29, 2010 letter from Mr. Peter V. Abrametz. The letter indicated that Mr. Abrametz was claiming solicitor’s lien against the shares owned by Barry Jensen in Jen-Sim Cattle Co. Ltd. for the indebtedness of Mr. Jensen and Jen-Sim Cattle Co. Ltd. to the firm of Eggum, Abrametz and Eggum. The letter in part is as follows: Please accept this letter as our advice that we hold Solicitor’s Lien against the shares of Barry Jensen held in Jen-Sim Cattle Co. Ltd., for the indebtedness of Barry Jensen and the Corporation to our firm. Our offices are further of the view that Section 20 of The Saskatchewan Farm Security Act applies, and that the Execution Creditor must first get leave of the court to make an application to seize and sell the shares of Barry Jensen as they relate to farmland, and accordingly any application to seizure the shares is nullity without leave of threat of the court. i. On December 13, 2010, ACS’s solicitors wrote to Mr. Abrametz and requested that the shares be produced to the sheriff. j. Mr. Abrametz replied by letter dated December 22, 2010 indicating an unwillingness to produce the shares to the sheriff. The letter in part is as follows: Thank you for your correspondence of December 13th, 2010. This letter will confirm that our offices claim possessory lien pursuant to the common law against the shares of Barry Jensen held in Jen-Sim Cattle Co. Ltd. We enclose herewith summary of all accounts owing by Barry Jensen and/or Jen-Sim Cattle Co. Ltd. to our firm. We consider our representation of Barry Jensen, and Jen-Sim Cattle Co. Ltd. as single solicitor-client relationship. ... SUMMARY OF ACCOUNTS OWING BY BARRY JENSEN AND/OR JEN-SIM CATTLE CO. LTD. TO PETER V. ABRAMETZ Account #10187 $3,000.00 Account #02415 537.08 September 29th, 2004 October 13th, 2005 189.80 June 11, 2007 188.40 September 27, 2007 188.40 October 10, 2008 187.00 November 24, 2009 252.86 TOTAL $4,543.54 k. Mr. Abrametz was provided with several opportunities to produce the shares, and notice that the non-production of the shares would result in court application by ACS for their production. [3] There is also the uncontroverted affidavit of Barry Jensen. In part it is as follows: a. He is the President of Jen-Sim Cattle Co. Ltd. b. That Peter V. Abrametz has performed legal services on behalf of Jen-Sim Cattle Co. Ltd. and himself for approximately the last 10 years, and that the corporate indebtedness, and his indebtedness to November of 2010 was $4,543.54. c. That Jen-Sim Cattle Co. Ltd. is farming corporation. That its sole asset is lands held for farming purposes. That the income produced by the corporation was in excess of $5,000.00 in the past year. d. He owns all 37 Class “A” voting/participating shares. There are also issued 185 Class “B” non voting, participating shares. There are five children that have an interest with him and have majority interest in the corporation. e. He knows of no legal obligation between himself and the plaintiff whereby he is required to deliver up to the plaintiff his Class “A” Common, voting shares in Jen-Sim Cattle Co. Ltd. He has not pledged, hypothecated, sold or in any way encumbered the said share certificate which would require them to be delivered to any third party in accordance with any obligations, or encumbrances he may have placed against the same. f. The only claim against his shares within Jen-Sim Cattle Co. Ltd. is the plaintiff’s claim, as creditor. It is as creditor that the plaintiff instructed the sheriff, Judicial Centre of Prince Albert, to make seizure of his shares in Jen-Sim Cattle Co. Ltd. g. There is no outstanding obligation against the shares of Jen-Sim Cattle Co. Ltd., excepting only the solicitor’s lien of Peter V. Abrametz, for legal services provided unto the Jen-Sim Cattle Co. Ltd., and himself, Barry Jensen, the shareholder, and for which he holds his said share certificate as security. Issues (a) Can the legal office of Eggum, Abrametz and Eggum refuse to hand over the shares in Jen-Sim Cattle Co. Ltd. to the sheriff pursuant to a solicitor’s lien? (b) Are the shares in Jen-Sim Cattle Co. Ltd. exempt from seizure pursuant to The Saskatchewan Farm Security Act, S.S. 1988-89, c. S-17.1? Law and Determinations (a) Can the legal office of Eggum, Abrametz and Eggum refuse to hand over the shares in Jen-Sim Cattle Co. Ltd. to the sheriff pursuant to solicitor’s lien? [4] The solicitor’s lien herein arises out of s. 66(3) of The Legal Profession Act, 1990, S.S. 1990-91, c. L-10.1. In his correspondence set out above, Mr. Abrametz claimed common law possessory lien. On argument, Mr. Abrametz acknowledged that his claimed common law lien was the same as lien pursuant to s. 66(3) and further went on to claim solicitor’s lien pursuant to s. 66(3). As Justice Pritchard pointed out in Maduik v. Wasylyshen (1999), 1999 CanLII 12590 (SK QB), 178 Sask. R. 241 at 244 (Q.B.), para. [8] In Tkach, Duchin Bayda v. Wood and Fairhurst (1992), 1992 CanLII 7935 (SK QB), 99 Sask. R. 256 (Q.B.), Madam Justice Hunter reviewed the development of the law relating to solicitors’ liens in Saskatchewan and determined that s. 66(3) of the Act codifies the general law with respect to liens that result from possession and is governed by cases of possessory liens ... [5] Section 66(3) and (4) of the Act is as follows: (3) member has lien or charge for the member’s proper fees and expenses in relation to all legal services performed by the member for client against any property owned by the client that is in the member’s possession. (4) Nothing in subsection (3) overrides the exceptions to solicitor’s lien at common law. [6] consider the decision of Imperial Developments (Canada) Ltd. (Receiver of) v. Field Field (1988), 1988 ABCA 154 (CanLII), 68 C.B.R. (N.S.) 164 (Alta. C.A.) to be instructive. In Imperial the issue on appeal was whether the court-appointed receiver of the respondent companies could demand production and delivery of the files of those companies notwithstanding they were subject to valid solicitor’s lien. [7] At pages 167-68, Lieberman J.A. said: The receiver is an officer of the court deriving authority from the court’s order. His appointment is for the benefit of “all” parties, including the debtor and all creditors. The client cannot refuse production and delivery to the receiver. conclude, therefore, that since the solicitor’s right to refuse production and delivery based on lien is no higher than that of his client, he cannot refuse production and delivery to the receiver in this case. In these circumstances, the argument that the receiver cannot have rights greater than those of the client vis-à-vis the solicitor cannot be sustained. [Emphasis added] And at pages 168-69: In my view, therefore, the general rule that solicitor’s lien can be raised against all persons claiming through the client must be qualified by consideration of against whom the rights accruing from the lien are claimed. solicitor has no better right to retain documents than his client would have if still in possession of them. Consequently, if the client is bound to produce documents to receiver, the solicitor is similarly bound. This exception to the general rule has been recognized in Canada and applied in favour of trustee in bankruptcy. Re Motherwell (1921), 20 O.W.N. 306, C.B.R. 497, affirmed 1921 CanLII 487 (ON SC), 21 O.W.N. 108, C.B.R. 128, 62 D.L.R. 130 (S.C.); Re Walkerville Fuel Supply Co. (1932), 13 C.B.R. 447 (Ont. S.C.); Re Fundy Forest Indust. (1972), 21 C.B.R. (N.S.) 170, N.B.R. (2d) 344 (Q.B.). In Northland Bank v. L.G. Lands Ltd., 1983 CanLII 467 (BC SC), [1983] W.W.R. 86, 44 B.C.L.R. 237, 47 C.B.R. (N.S.) 305 (S.C.), Legg J. held that the receiver is court-appointed official appointed to discharge certain duties and that to permit solicitor’s lien to prevail against the receiver would afford the solicitor greater right than his clients to withhold documents from the receiver. Two Alberta decisions arrive at the same result: Alta. Treasury Branches v. Invictus Fin. Corp. (1984), 1984 CanLII 1351 (AB QB), 55 C.B.R. (N.S.) 174 (Q.B.); Alta. Treasury Branches v. Invictus Fin. Corp. (1985), 1985 CanLII 1182 (AB QB), 38 Alta. L.R. (2d) 36, 56 C.B.R. (N.S.) 239, 63 A.R. (Q.B.). [8] There is also the decision of Kramer Ltd. v. Dallas Contracting Ltd., 2007 SKQB 24 (CanLII), 47 C.P.C. (6th) 332. In this case production of documents were sought for purposes of ongoing litigation. Commencing at page 334, para. 7, Currie J. said: solicitor’s retaining, or possessory, lien arises from the common law. The lien entitles the lawyer to keep the client’s property or documents from the client. As between the client and the lawyer, the client may not recover the property or documents until the lawyer is paid: Hawkes, Re, [1898] Ch. (Eng. C.A.), at 6-7; Barratt v. Gough-Thomas, [1950] All E.R. 1048 (Eng. C.A.), at 1053; Northland Bank v. L.G. Lands Ltd., 1983 CanLII 467 (BC SC), [1983] W.W.R. 86, [1983] B.C.J. No. 1716 (B.C.S.C.) at para. 8; Imperial Developments (Can.) Ltd. (Receiver of) v. Field Field (1988), 1988 ABCA 154 (CanLII), 51 D.L.R. (4th) 700 (Alta. C.A.) at 702. The lawyer’s right to retain the property or documents can be limited, however, when other parties become involved. In the context of litigation involving the client, the lawyer’s right to retain documents is no greater than is the client’s when faced with the right of third party to require production of the documents. Lindley M.R. said at pages 6-7 in In re Hawkes: ... solicitor’s lien is simply right to retain his client’s documents as against the client and persons representing him. As between the solicitor and third parties, the solicitor has no greater right to refuse production of documents on which he has lien than his client would have if he had the documents in his own possession. This principle is as applicable at law as it is in equity. Accordingly, it has been long settled that if solicitor is required by his client to produce documents under subpoena duces tecum the solicitor can refuse to do so if he has lien on them; but that the lien is no answer to demand for their production by third party: see Hope v. Liddell [7 D. M. G. 331]; Hunter v. Leathley [(1830) 10 B. C. 858]. This doctrine is not confined to production under the exigency of subpoena duces tecum. The same principle applies to other applications for production by solicitors who are acting for their clients in litigation: see, at law, Ley v. Barlow [(1848) Ex. 800] and, in equity, Furlong v. Howard [(1804) Sch. Lef. 115]. Nothing can be clearer than Lord Redesdale’s judgment in this last case: “Though solicitor may have lien on deed for his costs, yet if his client is bound to produce it for the benefit of third person, so also must the solicitor. know this is not so understood in general; but the common opinion, that the solicitor may withhold it from all parties, in such case is erroneous. The right is only as between his client and him.” It is on this principle that Courts of Equity order solicitors acting for clients who are parties to actions to produce documents on which the solicitors have lien, if their production is necessary for the purpose of doing justice to other persons besides their respective clients.... Thus, in court action client may be required by law to produce, to another party to that action, documents in the client’s possession. If the documents are in the possession of the client’s former lawyer, who asserts retaining solicitor’s lien, the lawyer must produce the documents. This is the case whether the documents are required under subpoena or under the rules for document production. do note that at page 335, para. 14, Currie J. went on to say: 14 ... not every case of solicitor’s lien involves litigation requiring production of document that is subject to the lien. In many cases, there will be no such circumstance to interfere with the lawyer retaining documents.... [9] do not consider the above obiter statement of Currie J. to be binding on me. (R. v. Wolverine, 1987 CanLII 4603 (SK QB), [1987] W.W.R. 475 (Sask. Q.B.)) In any event consider the circumstances before me to be such as to warrant an interference with the lawyer retaining the documents. In this case writ of execution issued from this court. The sheriff has been unable to enforce the writ due to the position taken by Eggum, Abrametz and Eggum. The process of the court has been thwarted. [10] Mr. Abrametz refers me to the decision of Mariani v. Bergstein, [1995] O.J. No. 3007 (Ct. J. (Gen. Div.)) (QL), Court File No. RE 5751/95, October 13, 1995, decision of Somers J., in support of the proposition that if the shares are required to be handed over, then the funds received by ACS should be firstly used to pay out the solicitor’s lien. think not. Mariani has no application to the matter before me. The parties therein were the debtor and the lawyer holding solicitor’s lien over the debtor’s property. There was no third party. Also the debtor refused to pay his solicitor’s bills, so while the court granted the transfer of the files, the debtor was still required to pay his outstanding legal fees. [11] Based on the foregoing, the right of Eggum, Abrametz and Eggum to refuse to produce and deliver up shares to the sheriff has not been made out. [12] Should be found to be in error as above, will now proceed to determine if the lien in question is valid one. [13] Mr. Abrametz refers me to Kingswood Explorations 1985 Ltd. v. Elkind, [1988] O.J. No. 955 (S.C. (H.C.J.)) (QL), Court File No. 27134/88, July 5, 1988, decision of Granger J., and says that Barry Jensen’s shares are part of the records of Jen-Sim Cattle Co. Ltd. and as such they are subject to solicitor’s lien for legal work done for the company. consider Kingswood to have no application to the matter before me. There is nothing before me that even remotely suggests that Barry Jensen is not the owner of the shares in question. Thus he owns the shares. They are his and his alone. They cannot be subsumed to the company and thus become liable to solicitor’s lien as being part of the records of the company. The claim for lien is not made out. [14] Further, the summary provided by Mr. Abrametz does not allow me to determine the amount owing by Barry Jensen for legal work done for him. The summary provided by Mr. Abrametz does not allow me to determine the amount owing by Jen-Sim Cattle Co. Ltd. for legal work done for it. The claim for lien is not made out. [15] From the evidence before me, it cannot be said that Barry Jensen guaranteed or in any way indicated that he would be personally responsible for payment of the legal work done for Jen-Sim Cattle Co. Ltd. If that was the case, it would have been simple matter to say so in his affidavit. consider Barry Jensen’s affidavit to be glaringly silent in that regard. [16] Given the totality of what is before me, I do not consider a valid solicitor’s lien to have been made out. (b) Are the shares in Jen-Sim Cattle Co. Ltd. exempt from seizure pursuant to The Saskatchewan Farm Security Act? [17] The sheriff has the power to seize shares pursuant to The Executions Act, R.S.S. 1978, c. E-12, particularly ss. 17-17.2. Upon seizure, the sheriff has the power to sell the shares in order to collect the outstanding debt. [18] Mr. Abrametz submits that s. 21(1) of The Saskatchewan Farm Security Act has application. The subsection is as follows: ... no farm land shall be sold by the sheriff under writ of execution against the lands unless, on application by the execution creditor, the court orders that this subsection does not apply. [19] Mr. Abrametz’s submission is that the end result of the seizure and sale of Barry Jensen’s shares will be sale of farm lands. That leave of the court must be first obtained. think not. If Mr. Abrametz’s interpretation was correct, no shares of an agricultural company could be seized at all, pending leave, as they would all have some form of farm land as part of the company. There is no such restriction in The Executions Act nor in The Saskatchewan Farm Security Act. There is a difference between the seizure and sale of shares in a company and the seizure and sale of a piece of farm land. [20] I order the law firm of Eggum, Abrametz and Eggum to produce and deliver up to the sheriff of the Judicial Centre of Prince Albert the shares of Barry Jensen in Jen-Sim Cattle Co. Ltd. ACS shall have it costs of this application as against the law firm of Eggum, Abrametz and Eggum which I fix at $750.00.

A judgment issued from the Court along with a writ of execution. The plaintiff discovered that one of the defendants had shares being held at the defendants' solicitor's office and instructions were given to the sheriff to seize and sell the shares. The sheriff attended to seize the shares but the defendants' lawyer objected. At issue was whether the legal office could refuse to hand over the shares to the sheriff pursuant to a solicitor's lien and whether the shares were exempt from seizure pursuant to the Saskatchewan Farm Security Act. HELD: The law firm was ordered to produce and deliver to the sheriff the shares of the defendant in the third corporation; costs were fixed at $750. 1) The right of the law office to refuse to produce and deliver the shares to the sheriff had not been made out and court process was thwarted. There was no evidence to determine the amount owing from the defendant or the third corporation for legal work; a valid solicitor's lien was not demonstrated. 2) There is a difference between the seizure and sale of shares in a company and the seizure and sale of a piece of farmland and the argument that the Executions Act or the Saskatchewan Farm Security Act restricts the seizure fails.

c_2011skqb100.txt

1999 SKQB 276 Q.B. A.D. 1998 No. 549 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: GLEN CAUDLE and LOUISVILLE SALES SERVICE INC. and MERLIN MOTORS INC. DEFENDANTS R. P. Piché for the plaintiff C. A. Sloan for the defendants FIAT LAING J. December 30, 1999 [1] The plaintiff applies for summary judgment in his claim for dismissal without just cause brought pursuant to the simplified procedure outlined in Part Forty of the Rules of Court. The defendant opposes the application and requests summary trial. [2] Rule 488 sets out the test for summary judgment. 488 On an application for summary judgment the presiding judge shall grant judgment unless, (a) the judge is unable to decide the issues in the action in the absence of cross-examination; or (b) it would be otherwise unjust to decide the issues on the motion, whereupon the judge shall order summary trial, or the trial of specified issue or issues. [3] The foregoing rule, by its use of the words “... shall grant judgment unless ...” requires the presiding judge to grant judgment except in those circumstances outlined in s. 488(a) and (b). As noted in Kostuchuk v. Bombardier Credit Ltd., 1994 CanLII 3870 (SK CA), [1994] 10 W.W.R. 257 (Sask. C.A.) per Cameron J.A. at p. 271-72, and Royal Bank of Canada v. Melnick, 1995 CanLII 6093 (SK QB), [1996] W.W.R. 752 (Sask. Q.B.) per Klebuc J. at p. 757-59 with respect to granting judgment pursuant to the summary judgment Rules, the basic question is whether there is genuine need for the trial of an action. In the context of Rule 488, there will only be such need where the judge concludes upon the material filed in the motion that s. 488(a) and/or (b) are applicable, which sections simply identify why there may be need for trial. As with the summary judgment rules, the defendant bears the burden of demonstrating there is genuine need for trial. (Kostuchuk v. Bombardier Credit Ltd., supra per Cameron J.A. at p. 273) [4] It follows from the foregoing that the test is not whether there is contradictory evidence in the affidavit material filed, but rather, whether despite the contradictory evidence, the issue(s) can be decided in the absence of cross-examination and it would not otherwise be unjust to do so. One way that contradictory evidence can be decided in the absence of cross-examination, is where for the purposes of the application the Court accepts the defendant’s evidence wherever it conflicts with that of the plaintiff and still concludes the plaintiff is entitled to judgment. The analogy is the law related to the striking of pleading for disclosing no reasonable cause of action or defence (Rule 173(a)) where the Court must assume any allegation of fact to be true. If the Court can assume the defendant’s evidence is true and still grant summary judgment, there is no genuine need for trial. Such is the case in this matter. [5] The plaintiff commenced employment with the defendant’s predecessor, Merlin Motors Ltd., on February 18, 1991 as bodyshop foreman after working in the bodyshop industry for various employers over the previous ten years. At some point in his employment, the date of which is not in evidence, he also acquired the title of assistant manager of the bodyshop. On January 1, 1997, the defendant, Louisville Sales Service Inc. purchased the bodyshop business from Merlin as result of an internal corporate reorganization. Employees were advised that all employee benefits offered by Merlin would be continued, and there is no issue that the plaintiff’s employment for the purposes of his claim is continuous from February 18, 1991. There is no suggestion by the employer in the affidavit material filed by it that there were any problems with the plaintiff’s performance prior to May, 1997. [6] In early May, 1997, Cecil Dust, the bodyshop manager, became ill and was off work large portion of the time up until the plaintiff’s notice of termination dated July 30, 1997. The work load of Mr. Dust fell to the plaintiff in addition to his duties as bodyshop foreman and assistant manager. It was his performance in this period between early May and July 30, 1997 which resulted in his termination. [7] The defendant’s evidence in support of the plaintiff’s termination for just cause is an affidavit by Debbie Anderson who, in 1997, was the office manager for the defendant and more recently is the quality manager. The relevant paragraphs in her affidavit are as follows: 5. Beginning in approximately early May of 1997, Cecil Dust, the Bodyshop Foreman, became ill and was off work for large portion of the time for the next three months undergoing medical treatment. Most of Cecil Dust’s duties were taken over by Glen Caudle, and assisted with some of the work assignments. 6. It was during the time of Mr. Dust’s illness, that Glen Caudle became extremely difficult to work with. Glen Caudle would repeatedly complain about having to undertake Mr. Dust’s duties in his absence, and yet also complain that was taking too much authority by making work assignments in the shop. 7. Glen Caudle would complain about Mr. Dust to myself and other junior employees and say that Mr. Dust should be reprimanded for his absences and work performance. 8. Glen Caudle criticized Mr. Dust and Louisville in front of customers on at least four or five occasions in my presence. On one particular occasion, customer, Ray Conner, brought in vehicle for repairs. Cecil Dust had earlier advised Mr. Conner that it would take approximately ten days to repair the vehicle. Mr. Dust was not in when Mr. Conner brought the vehicle in to the shop. When Mr. Conner asked about the ten days to repair, Glen Caudle responded “oh sure, he’s (Cecil Dust) going to make me be the heavy and tell you it can’t be done. There’s no way we can have it done in ten days. I’ve got to do everything around here.” 9. During the period of Mr. Dust’s illness, Louisville had Quality Manager by the name of Corey Rissling. When Corey Rissling would ask questions of Glen Caudle, Glen Caudle would simply ignore him and walk away without saying anything. Glen Caudle told me several times that he thought that Louisville paid Corey too much when he did not know his job. 10. In approximately mid July, 1997, during work hours, noticed Glen Caudle pull his personal vehicle into the shop’s car wash, and that Deven Amendt was cleaning the vehicle. When asked him what he was doing, Deven responded, “I’m just doing what I’m told.” 11. few days after Deven Amendt cleaned Glen Caudle’s vehicle, Gary Bews, the President of Merlin Motors Inc., stopped by my office and asked how things were going. responded that they were not good, and thereafter, met with Gary Bews and Reid Bews to discussed [sic] the atmosphere in the shop and Glen Caudle’s behaviour towards Cecil Dust, the junior employees, and the customers. We discussed the incidents have referred to above, and at the time, prepared handwritten summary of Glen Caudle’s behaviour which summary is attached hereto and marked as Exhibit “A”. [8] Exhibit “A” referred to in paragraph 11 states as follows: Ray Conner cutting down Cecils time frame to customer talking to guys in back how mad he is that Cecil’s gone on holidays he thinks he shouldn’t of [sic] taken any telling customers that he is doing everything around here telling the guys how mad he is for me giving out jobs making Deven clean dog poop out of his personal vehicle on company time telling Deven how he wants to repremand [sic] Cecil not being cooperative with Corey i.e. if he asks question he just walks out the door without saying anything telling guys out back he doesn’t like Corey. getting mad because Cecil wanted to hire Lorne but Glen didn’t want him so Cecil didn’t, Glen said he should hire someone without any bodyshop knowledge and when Cecil does that complain that Corey doesn’t know anything. [9] The defendant also filed an affidavit by Leon Lohman who is the paint foreman for the defendant. The operative portions of his affidavit are: 2. As Paint Foreman, work closely with the technicians in the Bodyshop. was informed by various employees in the Bodyshop, and verily believe the same to be true, that Glen Caudle was not well liked by the employees in the Bodyshop, particularly those in the shop itself. also believe this from my own observations of Mr. Caudle’s interactions with the staff. This situation worsened significantly during the time when Cecil Dust was away from the Shop due to illness beginning in approximately May of 1997. 3. Beginning in approximately May of 1997, noticed that Glen Caudle’s attitude deteriorated and he became quite negative about his job and Louisville. [10] third affidavit of Deven Amendt, the car washer at the time, was filed by the defendant. In paragraphs and of this affidavit he states: 3. In approximately mid July, 1997, during work hours, Glen Caudle requested that clean his personal vehicle as it was soiled with dog feces. cleaned his vehicle as requested. 4. recall that after cleaning Mr. Caudle’s vehicle, Debbie Anderson, the then office manager, asked what was doing, and responded, “I’m just doing what I’m told.” [11] The final affidavit filed by the defendant is that of Reid Bews, president of the defendant, who received all of the information on which he based his decision to terminate Mr. Caudle from Ms. Anderson. He states in part in paragraph of his affidavit: 2. In or about mid July, 1997, met with Debbie Anderson, Louisville’s Quality Manager. At that time, Ms. Anderson expressed to me her concerns respecting Glen Caudle, and the effect of his then recent behaviour on the morale of the staff in the Bodyshop and customers. It will be noted from the foregoing that Mr. Bews refers to “recent” behaviour, and makes reference to that behaviour only with respect to its effect on “... the morale of the staff in the Bodyshop and customers.” [12] At paragraphs to 10 Mr. Bews states as follows: 8. Shortly after my conversation with Ms. Anderson, met with Cecil Dust. This meeting took place few days after my conversation with Ms. Anderson as Mr. Dust was away from work. 9. During this meeting, explained to Mr. Dust my conversation with Ms. Anderson and that my inclination was to terminate Mr. Caudle’s employment as Louisville could not retain Bodyshop Foreman who was critical of the Bodyshop Manager and Louisville to both staff and customers. explained to Mr. Dust that believed Mr. Caudle’s behaviour was detrimental to the company’s interests both in terms of employee and customer relations. did not wish to terminate Mr. Caudle’s employment without first obtained [sic] Mr. Dust’s input. 10. At the conclusion of our meeting, both Mr. Dust and agreed, that Mr. Caudle’s employment should be terminated as he was harming both the staff and customers at Louisville. As result of Mr. Caudle’s behaviour, had lost confidence and trust in him. [13] On July 30, 1997, Mr. Bews met with the plaintiff in his office at which time he had written notice of termination dated July 30, 1997 prepared. In paragraphs 11 and 12 he states: 11. On July 30, 1997, met with Mr. Caudle in my office at Louisville. No one else was present at this meeting. explained to Mr. Caudle my concerns respecting his behaviour as they had been related to me by Ms. Anderson and Mr. Dust, and gave Mr. Caudle an opportunity to respond. Mr. Caudle did not deny any of the incidents, and admitted that he had told others at Louisville that he wanted Mr. Dust reprimanded for his absences. 12. At the conclusion of our meeting, and in light of the fact that Mr. Caudle had no dispute with any of the concerns that expressed to him, offered him the opportunity to resign which he refused. Mr. Bews then handed the plaintiff notice of termination effective six weeks hence. He stated he concluded it would be easier for Mr. Caudle to find new employment while still employed. Mr. Caudle was granted time off work with full pay until September 11, 1997. [14] It should be stated that the plaintiff does not agree with Mr. Bews’ description of the meeting or what was said by him during the meeting, but will not review the same because for the purposes of this application am assuming everything that Mr. Bews states is correct. [15] The position of the defendant is that the plaintiff’s behaviour as reported after the fact by Debbie Anderson, amounted to inexcusable serious misconduct which justified it in terminating the plaintiff’s employment without resort to any warning or any form of progressive discipline. The position of the plaintiff is that if everything the defendant states is accepted, those facts do not individually or collectively amount to serious misconduct, and did not cause any actual prejudice to the employer’s interests. [16] As has been noted in numerous decisions, whether an employer is justified in summarily dismissing an employee, is ultimately question of fact. Previous case law can be helpful when the facts in the previous case bear some resemblance to the facts in the case under consideration, but general statements of the law from cases where the facts bear no resemblance to the facts under consideration are of little or no assistance. It is for this reason that text writers on the law of dismissal categorize types of misconduct and thereafter review case law within that category. D. Harris, Wrongful Dismissal, looseleaf ed., 1999 Release (Toronto: Carswell), categorizes the misconduct alleged by the defendant in this case, at para. 3.23, as “Personality Conflict and Attitudinal Problems”. [17] As to what may constitute just cause in any particular fact situation, accept the definition of Saunders J. in Leung v. Doppler Industries Inc. (1995), 1995 CanLII 2530 (BC SC), 10 C.C.E.L. (2d) 147 (B.C. S.C.), aff’d (1997) 1997 CanLII 3435 (BC CA), 27 C.C.E.L. (2d) 285 (B.C. C.A.), which Harris, supra, at p. 3-54 describes as definition in practical and functional terms. At p. 152 Saunders J. stated: Just cause is conduct on the part of the employee incompatible with his or her duties, conduct which goes to the root of the contract with the result that the employment relationship is too fractured to expect the employer to provide second chance. [18] In this case, assuming all of the defendant’s evidence is true, have to agree with counsel for the plaintiff who characterized the plaintiff’s conduct as “griping”, whether it related to Mr. Dust’s absences, Mr. Dust’s estimates of time to perform work on Mr. Conner’s vehicle, or his comments on Mr. Rissling’s lack of knowledge. The one incident that does not relate to griping; namely, requesting the car washer, whose job it is to clean vehicles, to also clean his on company time, as an isolated incident, has to be regarded as minor infraction. There is no suggestion in the evidence that the car washer objected to doing so or lacked the time to do so. [19] The plaintiff’s griping occurred after it fell to him to perform the duties of the bodyshop manager in addition to his own duties as bodyshop foreman and assistant manager. There is no suggestion in the material that the plaintiff was asked if he was prepared to assume both jobs, or if he felt qualified to do so. One does not have to be psychologist to infer that performing both duties placed additional stress on the plaintiff which he had not previously been exposed to. His unblemished record for the previous six years confirms this. The plaintiff’s vocal complaining of the matters referred to during the course of attempting to perform both functions indicates he was not necessarily prepared for the role which was thrust upon him. So in the end result, the plaintiff was not terminated because of poor job performance in performing his contractual duties as bodyshop foreman and assistant manager, but because of his alleged poor performance in doing the job normally assigned to two persons. [20] The employer has the right to expect that employees will not disparage their immediate supervisors or other employees in the course of their employment, and certainly not to clients or customers of the employer. However, griping is not exactly unusual in a work place, and the type of conduct alleged against the plaintiff would not justify dismissal the first time it came to the employer’s attention, if he had been guilty of such conduct while performing only his own job function. In my brief review of the case law, it seems uniform that one or more warnings to an employee must be given before it can be said such activity “fractures” the employment relationship. Where dismissal does result after one or more warnings, the category of misconduct can be said to change from one of poor attitude to one of disobedience or insubordination. [21] In this case the alleged misconduct of the plaintiff would have justified him being warned to not continue such conduct, but it falls far short of conduct justifying cause for termination. The plaintiff is entitled to enter judgment for the damages which flow from this dismissal without just cause as set out hereafter. THE PERIOD OF REASONABLE NOTICE [22] As noted above, the plaintiff did receive six weeks’ notice of his termination or pay in lieu thereof (it is not altogether clear whether he worked at all during this period). The defendant did not seriously argue, despite its pleading to this effect, that six weeks’ notice is adequate for person terminated from junior managerial position after period of six and one-half years of employment. There is no issue of lack of mitigation on the part of the plaintiff as he did accept job with another autobody shop effect November 1, 1997 at much lower rate of pay. [23] At the time of his dismissal, the plaintiff was 35 years old and earned approximately $55,000 per annum in his previous year of employment made up of salary and bonuses paid on percentage of the profit earned in the bodyshop. In this fiat I intend to set only the amount of notice the plaintiff was entitled to, and leave it to the parties to work out the damages the plaintiff is entitled to for the notice period based on his income and value of benefits for the previous 12-month period, less the six weeks’ pay he received, and less the wages and the value of the benefits he has received in his new employment during the notice period. If the parties are not able to agree, reserve jurisdiction to have the matter brought back before me for further evidence and decision. [24] The remarks of McRuer, C.J.H.C. in Bardal v. The Globe and Mail Ltd., 1960 CanLII 294 (ON SC), [1960] 24 D.L.R. (2nd) 140 (Ont. H.C.) at p. 145, are generally accepted as itemizing most, if not all of the considerations to be taken into account in any one case when determining an appropriate notice period for an employee. McRuer, C.J.H.C. stated: There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant. [25] In the case of a person in the plaintiff’s position, who occupied a junior managerial position in a very specific industry, the notice period selected should reflect that management positions are fewer in number than non-management positions, and that there is a considerable wage difference between a management position and a non-management one. [26] In this case the plaintiff was able to obtain employment within approximately two and one-half months of the end of the notice period given to him by the employer at wage considerably below what he had earned with the defendant. The evidence establishes the plaintiff applied to numerous autobody businesses prior to accepting the employment he did and was not successful in obtaining an equivalent position at an equivalent salary. Plaintiff’s counsel put forward a realistic assessment of an appropriate notice period of seven months. Taking all factors into account, I consider this is an appropriate notice period to which the plaintiff was entitled. [27] The plaintiff’s damages are to be calculated in the manner set out in the foregoing. [28] The plaintiff is entitled to taxable costs.

FIAT. The plaintiff applied for summary judgment in his claim for dismissal without just cause. The plaintiff was initially hired as body shop foreman but additionally acquired the title of assistant manager. When the body shop manager became ill that work load also fell to the plaintiff. It was during this period that the performance of the plaintiff, described by the defendant as serious misconduct, resulted in his termination. There was no issue of a lack of mitigation as the plaintiff accepted a job with another autobody shop but at a much lower rate of pay. The action was brought pursuant to the simplified procedure outlined in Part 40 of the Rules of Court. HELD: Damages were to be calculated by the parties for the 7 month notice period based on his income and value of benefits over the previous year, less the 6 weeks pay received, and less wages and benefits received from his new employment. Jurisdiction was reserved to hear further evidence should the parties not reach agreement. 1)By using the words 'shall grant judgment unless', Rule 488 requires the presiding judge to grant judgment except in the circumstances outlined in s.488(a)and(b). The test is not whether there is contradictory evidence in the affidavits but whether despite the contradictory evidence the issue(s) can be decided in the absence of cross-examination and it would be otherwise unjust to do so. If the court can assume the defendant's evidence is true and still grant summary judgment there is no genuine need for a trial. 2)As noted in numerous decisions, whether an employer is justified in summarily dismissing an employee is ultimately a question of fact. The plaintiff was not terminated because of poor job performance in performing his contractual duties as foreman and manager but because of his alleged poor performance in doing the job normally assigned to two persons. The employer has the right to expect that employees will not disparage their immediate supervisors or other employees in the course of their employment and certainly not to clients or customers of the employer. The type of conduct here would not justify dismissal the first time it came to the employer's attention if the employee had been guilty of such conduct while performing only his own job function. 'Griping' is not uncommon in the workplace. The case law seems uniform that one or more warnings to an employee must be given before it can be said such activity 'fractures the employment relationship'. The category of misconduct can be said to change from poor attitude to disobedience or insubordination where dismissal results after one or more warnings. 3)The plaintiff was entitled to 7 months notice to reflect the fact that junior management positions are fewer in number and the considerable wage difference between management and non- management positions. 4)The plaintiff was entitled to taxable costs.

d_1999skqb276.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Bourque v. Lemire, 2005 NSSC 84 Date: 20050411 Docket: SFHMCA-17373 Registry: Halifax Between: Christopher Thomas Lemire v. Stephanie Nicole Bourque Respondent Judge: The Honourable Justice R. James Williams Heard: April 8, 2005, in Halifax, Nova Scotia Oral Decision: April 11, 2005 Transcribed and Edited: April 19, 2005 Counsel: Timothy Gabriel, for the Applicant Respondent, self-represented By the Court: [1] This proceeding concerns Eleri Bourque-Lemire, born November 29, 1994, and Aiden Bourque-Lemire, born May 4, 1997. These are the children of Stephanie Nicole Bourque and Christopher Thomas Lemire. Ms. Bourque and Mr. Lemire married on October 2, 1993 and separated in or around May 5, 2002. [2] On November 27, 2003 contested interim application was held before Justice Dellapinna of this Court. Justice Dellapinna ordered as follows: IT IS ORDERED THAT pending further order of this Court: a. The parties shall share joint custody of the children, whose primary residence shall be with the Applicant, Stephanie Bourque; b. The Respondent, Christopher Lemire, shall have access with the children as follows: I. Every Tuesday and Wednesday from after school until between 9:00 to 8:1;5; p.m. each day and ii. Every second weekend from Friday after school to between 5:00 and 5:30 p.m. Sunday, beginning Friday December 5, 2003 and every second weekend thereafter. [3] Additional access was provided for during holiday periods and specified. [4] The affidavit and other evidence before me indicates that there has been some history of access difficulties between Ms. Bourque and Mr. Lemire. This is referred to in material that was filed before Justice Dellapinna and in the subsequent materials filed. [5] Most recently Mr. Lemire suggests (and am quoting from paragraphs and of his Affidavit of February 8, 2005): 6. Around Christmas time this year Ms. Bourque indicated to me that she was not prepared to follow the Interim Court Order and was going to cut back my Christmas access. reluctantly contacted the police to find out what their policy was in terms of enforcement of Orders under such circumstances, and when called her back and relayed to Ms. Bourque the information with which the police had provided me, found that was able to have the children over Christmas for the proper time. 7. However, on January 4th, 2005 Ms. Bourque contacted me (after dropped off the children from an access visit), and told me that she and the children were moving to Bridgewater at the end of January and that was “all there was to it”. She also told me that she plans on driving back and forth from Bridgewater with the children to take them to their regular school, which is Rockingham School, in Halifax every day. was concerned and asked her if the children could stay in town with me during the week to go to school and minimize the back and forth. She just laughed and said “no way”. Perhaps naively, hopped she was just trying to get “rise” out of me, and didn’t act on this immediately. was devastated to learn that she followed through on it and that she indeed moved with the children, at the end of January to Bridgewater. [6] Ms. Bourque, in her affidavit of March 15th states: 7. contacted Mr. Lemire, not on January 4th, 2005, but on January 5th, 2005. The children and discussed moving to Bridgewater many times, and did not make this move without their consent and support. They are both very happy in Bridgewater, and have transferred to Bridgewater Elementary School. They have made friends and are enjoying their new surroundings. They are enrolled in the YMCA after school program in Bridgewater and often say “Bridgewater is so much better than Halifax” as they have adjusted extremely well to new school and new start. 8. Mr. Lemire does not take an active role in the children’s lives, on any level. Homework was more often than not, not completed on Tuesdays and Wednesdays. Mr. Lemire has only attended one parent teacher meeting since our separation in 2002. Eleri is in grade now, and Aiden is in grade 2. Their education and medical and dental health have rarely been addressed by Mr. Lemire. Despite knowledge of their appointments, which initiate, Mr. Lemire does not attend nor inquire about later. [7] The evidence from Mr. Lemire would indicate that he attended significant number of the parent-teacher meetings. [8] The children were moved to Bridgewater by Ms. Bourque and registered in school in Bridgewater. Bridgewater is an hour or more from Halifax. Mr. Lemire has applied to vary the existing order. He seeks interim custody of the children. Ms. Bourque replies, seeking sole custody of the children herself. [9] Since Justice Dellapinna’s Order was made in November of 2003, conclude that both parties have been involved in the parenting of these children. conclude that Mr. Lemire has in large part exercised his access, has been involved in the extra-curricular activities of the children, including specifically soccer and parent-teacher programs. Until Ms. Bourque’s move in January both parents resided in the same area, relatively proximate to the children’s school and after-school programs. There are some difficulties in their (the parents’) communication, particularly with respect to the event of May 4, 2004, for which conclude both have some responsibility. Ms. Bourque has indicated that she has concerns about movies, video games and some other aspects of Mr. Bourque’s parenting. On the whole, her concerns, when put in the context of her move seem, in word, exaggerated. [10] At or near the end of January, Ms. Bourque unilaterally moved the children to Bridgewater, one hour from Halifax, changed their school, changed their after-school care and as result of the commuting time now added to the parties’ situation. She effectively eliminated and frustrated Mr. Lemire’s ability to exercise access as ordered by Justice Dellapinna, particularly the weekday access. She significantly altered his ability to be involved with the care of the children as contemplated by Justice Dellapinna’s Order. [11] There has been change in circumstances since Justice Dellapinna’s Order. There has been in effect unilateral action by Ms. Bourque that frustrates the terms of the existing court order. These are, in my view, exceptional circumstances. It is an exceptional occurrence. It is an exceptional action that Ms. Bourque has taken. These children went to school, had after-school care and had their activities in an area that both their parents lived in. They had significant contact with both parents. The children’s doctor remains in Halifax; their dentist remains in Dartmouth, which is certainly within the Halifax municipality. Ms. Bourque works in Halifax at Chain Lake Drive. Ms. Bourque has until January attended Mount Saint Vincent University in Halifax. She has indicated that she is postponing or suspending her education or studies as result of her move reflection, conclude, of the difficulties the commute from Bridgewater involves. [12] Ms. Bourque stated that she consulted the children about the move number of times. She said they knew that it would mean they would “not see Dad as much”. She spoke to them. She indicated in her viva voce testimony and asked them “not to tell Dad of the move”. Despite all of this, she then criticizes Mr. Lemire for, in the aftermath of her move, making reference to the Court Order with the children. have evaluated her evidence of the wishes of the children as being less than independent. [13] Ms. Bourque has indicated that she moved to Bridgewater to live with Kirk Solomon, gentleman who she apparently met October 19, 2004, less than two months, well less than two months, before the move was planned and raised with the children (in early January). She says now, in defence of her move, that the children have their own rooms and yard to play in. She has concerns that Mr. Lemire has only two-bedroom apartment, that there have been incidents of lost clothing and mittens and concerns about his reaction to that. am satisfied that his explanations for those events are reasonable. [14] Ms. Bourque has general, non-specific concerns regarding Mr. Lemire’s parenting, which betray rather negative attitude to him and his role with the children. My impression of Ms. Bourque is that she feels that she and she alone is entitled to make decisions concerning the children, irregardless of the impact on Mr. Lemire, Justice Dellapinna’s order and the children. She did not. [15] The hearing in this matter took place on March 29th, 2005. Near the end of her testimony Ms. Bourque indicated “I’ll move back to Halifax”, or words to that effect. She queried whether the Court would order her back to Halifax. She was told by this Court that “no, the Court would not order an adult to move”. As result, adjourned the matter from March 29th to give her an opportunity to think about her position and if she felt it appropriate, to consult with legal counsel. The matter was adjourned to April 8th. She returned to the Court. She indicated that she was staying in Bridgewater. She gave brief further evidence and the matter was concluded. [16] We have here situation where there is very specific Court order, joint custody order, provision that primary residence would be with Ms. Bourque and specific frequent access by Mr. Lemire. She has unilaterally changed that. The steps she has taken frustrate the access contained in the Order and the contact Mr. Lemire may reasonably have with the children with their after-school caregivers, parent-teacher programs, etc. Her actions were unilateral. She has moved herself and the children from the community she continues to work in, community in which the children have their medical and dental care, the community in which their father is in, the community in which she went to University. [17] The application before the Court is to change the primary residence of the children. am satisfied that there is change in circumstances in this case that warrants review of the existing Interim Order. am satisfied that, that said, the responsibility of the Court is to consider what appropriate interim order should be made at this time. am cognizant of the fact that in circumstance such as this, the Court must focus on the best interests of the children and not the rights of the one or the other parent. am also cognizant of the fact that the wishes and concerns of parent who has the responsibility of primary residence of the children is entitled to have her concerns, wishes and views considered very seriously. [18] The case of Gordon v. Goertz (1996) 1996 CanLII 191 (SCC), S. C. R. 27 (S. C. C.) contains, in my view, the applicable law. Chief Justice McLachlin stated (starting at paragraphs 49 and 50): [49] The law can be summarized as follows: 1. The parent applying for change in custody or access order must meet the threshold requirement of demonstrating material change in the circumstances affecting the child. 2. If the threshold is met, the judge on the application must embark on fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them. 3. This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances. 4. The inquiry does not begin with legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect. 5. Each case turns on its own unique circumstances. The only issue is the best interest of the child in the particular circumstances of the case. 6. The focus is on the best interests of the child, not the interests and rights of the parents. 7. More particularly the judge should consider, inter alia: (a) the existing custody arrangement and relationship between the child and the custodial parent; (b) the existing access arrangement and the relationship between the child and the access parent; ©) the desirability of maximizing contact between the child and both parents; (d) the views of the child; (e) the custodial parent's reason for moving, only in the exceptional case where it is relevant to that parent's ability to meet the needs of the child; (f) disruption to the child of change in custody; (g) disruption to the child consequent on removal from family, schools, and the community he or she has come to know. [50] In the end, the importance of the child remaining with the parent to whose custody it has become accustomed in the new location must be weighed against the continuance of full contact with the child's access parent, its extended family and its community. The ultimate question in every case is this: what is in the best interests of the child in all the circumstances, old as well as new? [19] Here these children are school aged. Their school and after-school care has been changed once already in the past few months. am concerned and take the circumstances before me very seriously. have attempted to focus on the best interests of the children. have attempted to focus on the wishes and concerns of the residential parent under the existing order. have attempted to consider the factors enumerated by Chief Justice McLachlin that have referred to. [20] The Court must recognize that there was an Order in place from the hearing in November of 2003, that that Order was based on the best interests of the children, that that Order has been effectively unilaterally altered by one parent. I conclude that Ms. Bourque’s decision to move was not in the best interests of these children, not carefully made. The decision to move was clearly done in the early weeks of new relationship. I conclude that it was done either to frustrate or with a rather callous indifference to the children’s relationship with their father. The question of what is in the best interests of these children in these circumstances must be seen not only in terms of their day to day care, but in the context of how Justice Dellapinna’s Order has been changed in de facto way by Ms. Bourque. [21] have had an opportunity to see both of these parents. am satisfied that they are both capable parents. am satisfied that they are both entitled to meaningful relationship with their children. am satisfied that Ms. Bourque has unilaterally taken steps that significantly disrupt not only the quantity but the quality of the relationship that Mr. Lemire has with the children. She has done so in the face of an existing Court Order. [22] have examined the circumstances of these children as closely as can based on the evidence that is available to me. [23] conclude that it is not in their best interests to again switch schools this school year. conclude, as have stated, that both parties are independently capable of caring for these children, that both parties have been involved in their care in meaningful way, that both parties have been involved with the children in an active way. [24] do not find the evidence of Ms. Bourque that attempts to diminish the parenting abilities of Mr. Lemire persuasive in any way. conclude that Ms. Bourque, through her actions, has demonstrated an inability to separate the children’s needs from her own. She has, as have indicated, demonstrated disregard, or perhaps even antipathy, for the relationship of the children with their father. [25] I conclude that it is not in the children’s best interests to remain in Ms. Bourque’s residential care beyond the end of the school year. I conclude that it is in their best interests to be in the primary care of their father effective the last day of June of 2005, that is at the end of the existing school year. They will remain in his primary care until further order of the Court. Ms. Bourque will have access each second weekend in the summer from 5:00 p.m. Friday to 8:00 p.m. Sunday evening. She will be responsible for the transportation of the children. She will have the right to two weeks’ of block access provided that it is not within the first two weeks of the month of July. Her each second weekend access will be suspended during two weeks of block holiday time that Mr. Lemire may designate for the children to be with him. Her access will include such other time as the parties may agree. If it becomes necessary for the parties to return to the Court to specify further access, will reserve the right to so consider such motion. [26] The children’s extracurricular activities from June 30th forward, until further order of the Court, will be in the Halifax municipality. The terms of the existing Order will be continued (in the Variation Order) until June 30th. Effective July 15th Ms. Bourque will pay child support as follows: the table amount of support based on income of $15,888.00 per annum, being $238.00 per month for two children, which will be payable on the 15th day of each month commencing July 15, 2005. Secondly, she will make contribution to child care based on her income of $15,888.00 as disclosed by the documentation before me and his of $33,996.00. She will contribute 30% of child care costs, slightly less than the actual ratio of 32%. [27] Finally, I would vary the existing Order for child support payable by Mr. Lemire to Ms. Bourque to reflect his current income. His current income, as indicated in the February Statement of Financial Information, is $33,996.00 per annum. The table amount for this amount of support for two children is $481.00 per month. The existing child support Order will be terminated as of January 1, 2005 and replaced by provision that commencing January 15, 2005 and the 15th day of each month through and including June 15, 2005, Mr. Lemire will pay Ms. Bourque the table amount of child support for two children based on $33,996.00 (or $481.00 per month). It would be my expectation that this Order would be brought current by no later than April 30, 2005. There will be no adjustment to the child care expenses contained in Justice Dellapinna’s Order. It will be shared by the parties until the end of June. [28] There is no order for costs requested. have directed that Trial dates and an organizational pre-trial be set so that this matter may move forward from an “interim” stage. J. S. C. (F. D.) Halifax, NS

The court had previously ordered interim joint custody of the child, with the primary residence being with the mother. The mother later unilaterally moved from Bridgewater to Halifax, frustrating the access provisions of the interim order. The father applied for interim custody and the mother replied, seeking sole custody. Children to remain with the mother until the end of the school year, at which point primary care of the children will be granted to the applicant; child support adjusted accordingly. The mother's decision to move was not in the children's best interests and it was done either to frustrate or with a callous indifference to the children's relationship with their father.

2_2005nssc84.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 60 Date: 2014 02 28 Docket: Q.B.C. 27 of 2012 Judicial Centre: Regina BETWEEN: HER MAJESTY THE QUEEN and CALVIN GERALD KLEMENZ and THOMAS RANDALL MATYCHUK Counsel: Ryan Snyder for the Crown Carson Demmons for Calvin Klemenz Bruce Campbell for Thomas Matychuk SENTENCING DECISION DAWSON J. February 28, 2014 [1] Calvin Gerald Klemenz and Thomas Randall Matychuk were each found guilty, by jury, of breaking and entering the home of F.J. and committing therein the indictable offence of aggravated sexual assault, contrary to s. 348(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. It is now my obligation, as the trial judge, to sentence Mr. Klemenz and Mr. Matychuk for this offence. [2] have prepared this decision in relation to both offenders, but sentencing is an individual exercise. will sentence each individual offender with regard to the principles of sentencing, the relevant factors and the considerations and situation of each individual offender. [3] In jury trial, the jury does not identify the facts that it found to support the conviction. As such, it is my obligation, as the sentencing judge, to find the facts for the purposes of sentencing. The sentencing judge is bound by the express and implied factual implications of the jury’s verdict. The sentencing judge must not accept as fact any evidence inconsistent with verdict rejected by the jury. As such, must not accept the evidence of Calvin Klemenz that he was not the perpetrator of this crime. Likewise, must not accept the evidence of Thomas Matychuk that he was not the perpetrator of this crime. Having said that, the sentencing judge is required to make only those factual determinations necessary for deciding the appropriate sentence in the case. The Supreme Court of Canada in R. v. Ferguson, 2008 SCC (CanLII), [2008] S.C.R. 96, stated that where any ambiguity on the facts exists, the sentencing judge must consider the evidence and make her own findings of fact, consistent with the evidence and the jury’s findings. This principle was confirmed by the Saskatchewan Court of Appeal in R. v. Dueck, 2011 SKCA 45 (CanLII), 371 Sask. R. 134. [4] In the circumstances of this trial, both Calvin Klemenz and Thomas Matychuk were convicted of the offence as charged as principal and/or as party to the offence, that is, as person who aided in the commission of the offence. The jury verdict established that both Calvin Klemenz and Thomas Matychuk broke and entered F.J.’s home and participated as principal or party in the aggravated assault on F.J. PRINCIPLES OF SENTENCING [5] Section 718 of the Criminal Code sets out the purpose and principles of sentencing. The Criminal Code states that the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of just, peaceful and safe society, by imposing just sanctions. [6] Section 718 also sets out the key objectives of sentencing, which include: denouncing unlawful conduct, which affirms community values concerning the magnitude of the crime and the maintaining of the morale of law abiding citizens (R. v. Arcand, 2010 ABCA 363 (CanLII), 499 A.R. at para. 275); deterring the offender and other persons from committing offences; where it is necessary, to separate the offender from society; to assist in rehabilitating the offender; to providing reparations for the harm done to the victim and the community; and to promote sense of responsibility in the offender and acknowledgment of the harm done to the victim and to the community. [7] Section 718.1 of the Criminal Code states that it is fundamental principle of sentencing that sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. In R. v. Hamilton, (2004) 2004 CanLII 5549 (ON CA), 72 O.R. (3d) 1, 241 D.L.R. (4th) 490 (Ont. C.A.), Justice Doherty stated that the gravity of the offence refers to the seriousness of the offence, in generic sense, as reflected by the potential penalty imposed by Parliament, as well as any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. Justice Doherty articulated that the degree of responsibility of the offender refers to the offender’s culpability, as reflected in the essential substantive elements of the offence, especially the fault component, and any specific aspects of the offender’s conduct or background that tend to increase or decrease the offender’s personal responsibility in the crime. Justice Doherty noted that in some circumstances one side of the proportionality inquiry will figure more prominently in the disposition than the other. For example, where there is young first offender being sentenced for serious property offences, the sentence imposed would tend to emphasize the features which mitigate the offender’s personal culpability, rather than those which highlight the gravity of the crimes. However, where young offender commits crime involving serious personal injury to the victim, the gravity of the proportionality inquiry will be given prominence in determining the ultimate disposition. [8] court is also to be guided by the principles that are set out in s. 718.2 of the Criminal Code. Several apply here. Firstly, s. 718.2(a) states that sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstance relating to the offence or the offender. [9] Secondly, s. 718.2(b) of the Criminal Code states that sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. This is known as the principle of parity. This implies that there must not be an unjustifiable disparity in sentences between sentences imposed for similar offences and similar offenders. (R. v. L.M., 2008 SCC 31 (CanLII), [2008] S.C.R. 163; R. v. Pham, 2013 SCC 15 (CanLII), [2013] S.C.R. 739 and R. v. Laliberte, 2000 SKCA 27 (CanLII), 189 Sask. R. 190. [10] Thirdly, s. 718.2(d) of the Criminal Code states that the least restrictive sanction should be identified and that available sanctions other than imprisonment should be considered. [11] It is with these principles in mind that undertake sentencing. CIRCUMSTANCES OF THE OFFENCE [12] In the early morning hours of March 15, 2012, Calvin Klemenz, Thomas Matychuk, and another individual drove in Calvin Klemenz’s van to the business known as Ramco Paving. They went to the Ramco Paving property with plan to break into the property and steal items from the property. Ramco Paving is located in north Regina, Saskatchewan. [13] The driver of the van stopped the van at the security gate of Ramco Paving. Thomas Matychuk got out of the van and tried to open the security gate. The driver got out of the van and assisted Mr. Matychuk to open the gate. They cut the lock on the gate. The driver then drove the van into the Ramco property at 2:15 a.m. on March 15, 2012. [14] At the same time, in the early morning hours of March 15, 2012, F.J. was asleep in his home, camper trailer, which was located inside the locked compound on Ramco Paving property. F.J. was awoken when he heard banging noises. F.J. looked at his watch and thought it was around 2:30 a.m. He turned on the light in his camper trailer and started to get dressed. At that moment, his camper door opened and an individual unknown to F.J. stuck his head in. This person was wearing heavy black hoodie. This person told F.J. to get down on the floor. F.J. asked the person what he wanted, but the person did not respond. This person pulled his head back out of the doorway. This person had masculine voice and F.J. described him as man. [15] The person who had stuck his head in the doorway, almost immediately after pulling his head back out of the door, entered F.J.’s home. As the perpetrator entered, he swung blue handled mallet hammer. This person told F.J. to get down on the floor. F.J. did as he was told. F.J. got down on his hands and knees. This person began stomping with his feet on F.J.’s back. While this person was stomping on F.J.’s back, two more people came into the camper. The person kept stomping on F.J.’s back demanding that F.J. tell him where F.J.’s money and debit card were located. One of the other persons who had entered F.J.’s home joined this first person in beating F.J. While the two people beat F.J. by stomping and hitting him, the third person took F.J.’s money and wallet and began stealing F.J.’s electronics. Calvin Klemenz and Thomas Matychuk were two of the three people in F.J.’s home committing these acts. [16] The person who was not directly hitting F.J. took F.J.’s money and wallet. This same person removed F.J.’s laptop, his cell phone and his stereo from his home. After all of the electronics had been taken out, the assailants demanded that F.J. give them his PIN card number. The assailants continued to beat F.J. until F.J. gave them PIN number. They continued to stomp on the back of his head, to stomp on his neck, and to stomp on his back. After taking F.J.’s stereo, electronics, cell phone and wallet, the three people left F.J.’s trailer. F.J. was left laying on the floor of his home. F.J. got up and locked the door. [17] Video surveillance shows that at 2:37 a.m., Calvin Klemenz’s van left the Ramco property. The van then returned and re-entered the Ramco property at 2:39 a.m. [18] Before F.J. was able to get dressed, Thomas Matychuk and Calvin Klemenz returned. They banged on his door. One of them told him to unlock the door and get down on the floor. F.J. unlocked the door and laid back down on the floor as he was told to do. Only few minutes had passed between the time Calvin Klemenz and Thomas Matychuk left F.J.’s home and the time they returned. Thomas Matychuk and Calvin Klemenz came back into F.J.’s home. They began to yell at F.J. They accused him of giving them the wrong PIN number. Once again, these perpetrators stomped on F.J. and beat him. They continued beating on him and demanding his PIN number. The assailants then tied F.J.’s hands behind his back with black charging cord from one of F.J.’s electronics. Then they began to sexually assault him. The assailants sodomized F.J. with pens and frying pan handle. They shoved the pens and frying pan handle into F.J.’s rectum. One of the assailants stated that they should kill F.J., burn his home and get rid of the evidence. As result of these assaults, F.J. gave these individuals another PIN number. The assailants then left F.J.’s home. On the way out, they smashed F.J.’s television with the hammer and smashed the corner of cabinet. They left F.J. on the floor of his camper in this beaten state. Calvin Klemenz and Thomas Matychuk were two of the people in F.J.’s home committing these acts. It is not necessary for me to determine if the third person entered F.J.’s home this second time. [19] The van left the Ramco property for the last time at 2:47 a.m., about 37 minutes after it first entered the property. [20] Shortly after leaving the Ramco property for the last time, Calvin Klemenz and Thomas Matychuk drove in Calvin Klemenz’s van to 7-11 store in north Regina. At 2:56 a.m., less than 10 minutes after leaving the Ramco property, Calvin Klemenz and Thomas Matychuk entered the 7-11 store together. Calvin Klemenz went to the counter in the 7-11 and bought something. Thomas Matychuk went to the back of the 7-11 store and attempted to utilize F.J.’s debit card in the Automated Teller Machine. Thomas Matychuk inserted F.J.’s debit card into the ATM machine and entered in F.J.’s PIN number. Calvin Klemenz walked to the area of the ATM Machine and waited for Thomas Matychuk to finish. Thomas Matychuk was unable to withdraw money from F.J.’s account because there were insufficient funds in F.J.’s account. Immediately thereafter, Calvin Klemenz and Thomas Matychuk left the 7-11 store together. [21] F.J.’s amp was recovered from the home of Calvin Klemenz. The blue handled mallet hammer used to beat F.J. was recovered from the shed at the home of Calvin Klemenz. Thomas Matychuk sold F.J.’s electronics and Calvin Klemenz and Thomas Matychuk split the proceeds. [22] F.J. was badly injured. There was blood on the floor of F.J.’s kitchen from F.J.’s injuries. F.J. had no cell phone to call for help, but in addition, he was afraid to call because of the threats of the offenders. After Calvin Klemenz and Thomas Matychuk left Ramco, F.J. went into the Ramco building in an attempt to get comfortable. F.J. lost considerable amount of blood from this assault. F.J. was found by his co-workers around 7:00 a.m. He was taken to hospital shortly thereafter. [23] F.J. suffered numerous, extensive and serious injuries as result of the beating and sexual assault. F.J. had extensive bruising to his back and neck from the assailants stomping repeatedly on his neck and back with their feet. He had two black eyes and bruising to his forehead, from his head repeatedly hitting the floor as the assailants stomped on his neck and head. He had facial fracture. F.J. suffered bruising and cuts to his elbow from being struck with the hammer. [24] F.J. also suffered rectal injury from the handle of the frying pan being forced up his rectum. The force of the assault caused perforation into his abdomen. He suffered extreme abdominal pain and tenderness. He had bleeding from the rectum with clots and bright red blood. [25] After F.J.’s admission to the hospital, he was taken to surgery on an urgent basis. During surgery, it was discovered that he had rectal perforation on the interior portion of the rectum, heading up into the space between the rectum and bladder, and it was discovered that this also perforated into the abdomen. F.J. had large tear in the rectum which went quite deep in the pelvis. As result of the extent of the injury, the doctors had to perform an ostomy. F.J. was kept in hospital until March 23, 2012. [26] F.J. had to tolerate the ostomy until December, 2012. Thereafter, in March, 2013,- year after the assault, he had reconstructive surgery to reverse the ostomy. F.J. still has scars, is not as strong as he was before, and has lost lot of his muscle strength. THE OFFENDER CALVIN GERALD KLEMENZ [27] Calvin Gerald Klemenz was born October 10, 1974. He is 39 years of age. Mr. Klemenz has four children and two grandchildren. He is currently working towards obtaining his high school GED. Completing his education is one of his life’s plans. Counsel for Mr. Klemenz advises Mr. Klemenz is recovering drug addict. [28] Counsel for Mr. Klemenz advises that Mr. Klemenz was paroled in 2011 and prior to this offence, was successful on parole. Counsel advises that as result of the present offence, he has lost his home and his spousal relationship. He was employed at the time of this offence, but has lost that employment as well. [29] Calvin Klemenz has been on remand since April 11, 2012 on this charge. He has undertaken two bible study courses and completed them while on remand. He has had no institutional infractions while on remand. [30] Mr. Klemenz also has some strong family and community support. Members of his family attended court to show their support for him. [31] Counsel for Mr. Klemenz filed letters of support written by persons to show their support for Mr. Klemenz. [32] Mr. Klemenz worked for about 10 years at the Regina Beach Esso and his previous manager, from that employment, wrote letter of support. He described Mr. Klemenz as polite and courteous to customers. He indicated that Mr. Klemenz got along well with other employees. He wrote that Mr. Klemenz always did what was requested of him. His previous manager described Mr. Klemenz as nice young man. [33] Another letter written for support for Calvin Klemenz was from family friend and next door neighbour who has known Calvin Klemenz since 1978. She described shock and surprise that Calvin Klemenz would be involved in such an incident, as she stated that was not the nature of the young man that she knew. Janet Gordon, Calvin Klemenz’s older sister, also wrote letter of support. Ms. Gordon describes that Calvin Klemenz is giving, strong and caring person who has fallen into trouble because of drugs. Ms. Gordon does not believe that Calvin Klemenz is responsible for the offence. Andrew Gordon, the brother-in-law of Calvin Klemenz, also wrote letter of support. He believed that in the last three years Calvin Klemenz was attempting to turn his life around. He said Calvin Klemenz was involved in common law family situation and started very decent job at the Co-op Upgrader. He knew Calvin Klemenz to be non-violent man. Sheila Hart, Calvin Klemenz’s other sister, also wrote letter of support. She described Calvin Klemenz as caring and generous brother. She described Calvin as trusting person, but bit of follower. She described that he had succumbed to drug addiction and started to steal, but that he had never done anyone harm in the process. Ms. Hart says Calvin Klemenz is not violent person. Calvin Klemenz’s cousin also wrote letter of support. She describes Calvin as an honest, reliable, dependable and trustworthy person. She, too, asserts that Calvin is not violent person and is supporting Calvin in his claim that he is innocent of the crime. Calvin Klemenz’s Record [34] Calvin Klemenz has lengthy criminal record dating back to 1993. He has, by my count, been convicted of 40 previous offences. Most of Calvin Klemenz’s record relates to property offences and some driving offences, as well as numerous offences of failing to attend court and failing to comply with recognizance and with court orders. His only previous record for violence was conviction in January of 2008 of one count of armed robbery and one count of robbery. He was sentenced to 40 months concurrent on each of those charges. Counsel advises that most of Mr. Klemenz’s record relates to his issues of drug addiction and that Calvin Klemenz is working towards sobriety. [35] The full extent of Calvin Klemenz’s record is as follows: 1993-12-08 Theft under $1000 Sec 334(B) CC $100 I-D 21 days probation mos restitution 1995-09-27 Dangerous operation of motor vehicle Sec 249(1)(A) CC $750 I-D mos (1) Poss of property obtained by crime Sec 355(A) CC (2) Poss of property obtained by crime Sec 355(B) CC (1-2) $750 I-D 60 days on each chg (1) Theft under $5000 Sec 334(B) CC (2) Fail to appear Sec 145(5) CC (3) Fraud Sec 380(1) CC (2 chgs) (1-2) Susp sent probation 18 mos on each chg (3) Susp sent probation 18 mos (1) Public mischief Sec 140(1)(C) CC (2) Fail to comply with probation order Sec 733.1(1) CC (1) $600 I-D 13 days (2) $300 I-D days (1) Fail to comply with probation order Sec 733.1(1) CC (2) Fail to comply with probation order Sec 733.1(1) CC (3) Fail to attend court Sec 145(2)(B) CC (4) Fail to attend court Sec 145(2)(A) CC (1) Susp sent probation yr (2) $800 I-D 16 days (3-4) $50 I-D day on each (1) Driving while ability impaired Sec 253(A) CC (2) Driving with more than 80 mgs of alcohol in blood Sec 253(B) CC (3) Fail to comply with probation order Sec 733.1(1) CC (4 chgs) (4) Fail to appear Sec 145(5) CC (1) $1000 I-D 20 days probation yr proh dri yr (2) $600 I-D 12 days proh dri yr (3-4) Susp sent probation yr on each chg 2002-12-09 Poss of property obtained by crime under $5000 Sec 355(B) CC Susp sent probation mos conc to sent serving (1) Uttering forged document Sec 368(1) CC (2) Driving while disqualified Sec 259(4) CC (3) Fail to appear Sec 145(5) CC (4) Fail to attend court Sec 145(2)(A) CC (1-2) mos conditional sentence order (3-4) $100 I-D day on each chg (1) Breach of conditional sentence orders Sec 742.6(9) CC (for entries dated 2004-07-19) (2) Poss of scheduled substance Sec 4(1) CDS Act (2chgs) (1) Orders terminated (2) days conc (1) Break Enter commit Sec 348(1)(B) CC (2 chgs) (2) Break Enter with intent Sec 348(1)(A) CC (2 chgs) (3) Poss of property obtained by crime over $5000 Sec 355(A) CC (4) Fail to comply with recognizance Sec 145(3) CC (5) Fail to attend court Sec 145(2)(A) CC (2 chgs) (6) Driving while disqualified Sec 259(4) CC (1-2) Time served (18 mos) mandatory prohibition order Sec 109 CC (3-5) Time served (1 mo) on each chg conc (6) Time served (1 mo) conc proh dri yr (1) Armed robbery Sec 344(B) CC (2) Robbery Sec 344(B) CC (1-2) 40 mos on each chg conc (credit for mos pre-sentencing custody) mandatory prohibition order Sec 109 CC THOMAS RANDALL MATYCHUK [36] Thomas Matychuk was born April 10, 1978. He is 35 years of age. He was born in Regina and has three siblings. His parents separated in 1986 and initially, he lived with his mother. After that, he began to live with his father, but was taken into foster care on several occasions. Through his youth he lived mostly with his father. He is close to his one sister, and has some relationship with his other two siblings, although he indicates that he was not raised with them. [37] At the time of this offence, he was involved in common law relationship with Agnes Coldwell. He was involved with her for eight years. [38] Thomas Matychuk indicated during the trial that he was drug addict. At the time of the offence, he said he was off drugs but drinking heavily and still doing some drugs. He describes himself as an addict and an alcoholic. He is attempting recovery. [39] Thomas Matychuk has been on remand since July 17, 2012 on this charge. He has his grade 12, but has been attempting to take extra math classes. While on remand, he has taken the bible studies course and has met with the Chaplin every week. He has had no institutional infractions while on remand. [40] Thomas Matychuk has an extensive criminal record dating back to 1992 when he was youth. He has, by my count, 67 previous convictions. Most of his convictions relate to thefts and break and enters to commit theft. He also does have conviction for robbery with violence as youth. In 2005 he was parole violator and was re-committed. He has numerous convictions for obstruction of peace officer, fail to attend court and fail to comply with recognizance and court orders. By Thomas Matychuk’s admission, he indicates that he has been sentenced to total of nine years incarceration but has served approximately three years in jail because of parole. Thomas Matychuk’s Record [41] Thomas Matychuk’s record is as follows: 1992-05-20 Youth Court Poss of Property obtained by crime of $1000-Sec 355(a) CC 20 hrs community service work 1992-12-10 Youth Court BE Commit Sec 348(1)(B) CC chgs Probation yr on each chg 1993-06-21 Youth Court (1) Robbery with Violence- Sec 343(B) CC (2) Fail to comply with disposition Sec 26 YO Act (3) Fail to Attend Court Sec 145(2)(A) CC (4) Poss of Property obtained by crime under $1000 Sec 355(B) CC (5) Fail to comply with recognizance Sec 145(3) CC (6) BE Commit Sec 348(1)(B) CC (7) Obstruct Peace Officer Sec 129(A) CC (1-7) Probation 12 mos 1993-09-07 Youth Court (1) Theft under $1000 Sec 334(B) CC (2) Fail to comply with disposition Sec 26 YO Act (3) Fail to comply with recognizance Sec 145(3) CC (4) Fail to appear Sec 145(5) CC (1-4) Probation 12 mos 1993-11-24 Youth Court Mischief under $1000 Sec 430(4) CC 21 days time served 1993-11-25 Youth Court (1) Obstruction Sec 129(A) CC (2) Theft under $1000- Sec 334(B) CC (3) Fail to appear Sec 145(5) CC (4) Fail to appear Sec 145(4) CC (1-3) 21 days time served 1994-04-06 Youth Court (1) Theft under $1000 Sec 334(B) CC (2) Obstruct Peace Officer Sec 129(A) CC (3) Fail to comply with disposition Sec 26 YO Act (1) yr open custody (2-4) yr open custody 1994-04-16 Youth Court (1) Theft under $1000 Sec 334(B) CC (2) Obstruct Peace Officer Sec 129(A) CC (3) Fail to comply with disposition Sec 26 YO Act (1-3) yr open custody 1994-04-20 Youth Court Unlawfully at large Sec 145(1)(B) CC 30 days secure custody consec to sent serving 1994-06-20 Youth Court (1) Escape lawful custody Sec 145(1)(A) CC (2 chgs) (2) BE Commit Sec 348(1)(B) CC (3) Theft over $1000 Sec 334(A) CC (2 chgs) (4) Poss of property obtained by crime over $1000 Sec 355(A) CC (5) Theft under $1000 Sec 334(B) CC (6) Obstruction Sec 129(A) CC (1) mos secure custody consec to sent serving probation 18 mos on each chg (2-5) mos open custody probation 18 mos on each chg conc conc (6) mo secure custody consec probation 18 mos 1994 12 -07 Youth Court Escape lawful custody Sec 145(1)(A) CC mos secure custody consec to sent serving 1995 -10-17 Youth Court (1) Poss of property obtained by crime Sec 355(B) CC (2) Fail to comply with disposition Sec 26 YO Act (3) Escape lawful custody Sec 145(1)(A) CC (1-2) mo secure custody on each chg consec consec to sent serving (3) mos secure custody consec 1995 11-09 Youth Court (1) Att Obstruct Justice Sec 139 CC (2) Fail to comply with disposition Sec 26 YO Act (1) mos consec to sent serving probation 18 mos prohibited from poss any firearms, ammunition or explosive for 10 yrs (2) mo secure custody consec 1996-09-18 (1) BE Commit Sec 348(1)(B) CC (2) Escape lawful custody Sec 145(1)(A) CC (3) Unlawfully at large Sec 145(1)(B) CC (4) Fail to attend court Sec 145(2)(A) CC (5) Unlawfully at large Sec 145(1)(B) CC (1) 90 days consec to sent serving (2-4) 15 days on each chg consec consec (5) 30 days consec 1997-12-03 (1) BE Theft Sec 348(1)(B) CC (2) with intent Sec 348(1)(A) CC (3) BE Commit Sec 348(1)(B) CC (4) Fail to comply with probation order Sec 733.1(1)CC (5) Uttering forged document Sec 368(1) CC (6) Fail to attend court Sec 145(2)(A) CC (7) Dangerous operation of motor vehicle Sec 249(1)(A) CC (8) Fail to comply with recognizance Sec 145(3) CC (1-3) yr probation 18 mos on each chg (4-8) mo on each chg conc conc probation 18 mos on each chg 2000-02-02 (1) BE Theft Sec 348(1)(B) CC (2) BE Commit Mischief Sec 348(1)(B) CC (1-2) yrs on each chg conc 2000-04-18 Fail to attend court Sec 145(2)(A) CC 14 days conc with sent serving 2002 12-03 Flight while pursued by peace officer Sec 249.1(1) CC 30 days intermittent probation mos (1) Break Enter Theft Sec 348(1)(B) CC (2) Break Enter with intent Sec 348(1)(A) CC (3) Uttering threats Sec 264.1(1)(A) CC (4) Fail to comply with undertaking Sec 145(3) CC (5) Poss of property obtained by crime under $5000 Sec 355(B) CC (1-2) yr on each chg consec probation yrs (3-5) mos on each chg conc conc probation yrs 2005-07-06 Parole Violation Recommitted (1) Theft under $5000 Sec 334(B) CC (2) Fail to comply with recognizance Sec 145(3) CC (3) Fail to comply with probation order Sec 733.1(1) CC (1-3) mos conditional sentence order on each chg (1) Break Enter Theft Sec 348(1)(B) CC (2) Mischief over $5000 Sec 430(3) CC (3) Use of credit card Sec 342(1)(C) CC (4) Break Enter with intent Sec 348(1)(A) CC (1-4) 14 mos conditional sentence order 2008-03-06 Sentence varied on appeal to 10 mos (1) Theft over $5000 Sec 334(A) CC (2) Theft under $5000 Sec 334(B) CC (2 chgs) (3) Fail to attend court Sec 145(2)(A) CC (4) Break Enter Theft Sec 348(1)(B) CC (5) Driving while ability impaired Sec 253(10(A) CC (6) Fail to stop at scene of accident Sec 242(1) CC (7) Fail to comply with recognizance Sec 145(3) CC (1-4) yrs on each chg conc (5) mos conc proh dri 12 mos (6-7) mos on each chg conc conc EFFECT ON THE VICTIM [42] The following Criminal Code section is relevant: (1) For the purpose of determining the sentence to be imposed on an offender or whether the offender should be discharged pursuant to section 730 in respect of any offence, the court shall consider any statement that may have been prepared in accordance with subsection (2) of victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. [43] F.J. filed victim impact statement. F.J. indicated that this assault has affected even the smallest aspects of his life, such as eating and sleeping. F. J. says that because of the crack in his skull, he is limited from eating certain foods. [44] F.J. indicates that he lives with fear and he asks, “Am safe? Where can go to feel comfortable?” He says he always thinks, “Are they going to come back?” [45] F.J. describes that because of his internal injuries, he had to have surgery which has left him very handicapped. F.J. is unable to work. He says he cannot pick up his nieces and nephews. He has to sleep certain way because of the damage to his back. [46] F.J. indicated that this crime has had financial impact on him as well. He said his bills are piling up because he has been unable to work. As well, because all of his credit cards and wallet were stolen, along with all of his electronics, stereo equipment and cell phone, he suffered further financial hardship. He expressed that he was sad at the loss of his photographs which were on his cell phone. [47] He described that this crime also impacted his family. His family has had to travel many miles to be with him through his recuperation. F.J. had to undergo multiple surgeries as result of the assault. [48] It is clear that this assault has had profound and lasting effect on F.J. F.J. showed considerable courage and composure in testifying about this terrifying incident. He should be commended for his strength of character. CROWN SUBMISSIONS ON SENTENCE [49] It is the Crown’s position that this is very serious aggravated sexual assault. It is the Crown’s position that it is an aggravating factor that this assault occurred in the course of home invasion. The Crown takes the position that s. 348.1 of the Criminal Code applies. [50] The Crown submits that it is also aggravating that weapons were used in the course of the assault. The Crown submits that it is further aggravating that Calvin Klemenz and Thomas Matychuk perpetrated an assault on F.J., left his residence and returned shortly thereafter to continue the assault. The Crown submits it is aggravating that there was significant personal injury to F.J. The Crown suggests it is further aggravating that Calvin Klemenz and Thomas Matychuk each have significant criminal records. It is the Crown’s position that the appropriate sentence is period of incarceration, prior to any adjustments for pre-trial custody, of 12 years for each offender. The Crown relies on the following cases to support their position on sentencing: R. v. Fraser, 2007 SKCA 113 (CanLII), 302 Sask. R. 210 R. v. Payne, 2007 SKCA 28 (CanLII), 293 Sask. R. 31 R. v. Pelly, (R.J.), 2006 SKCA 60 (CanLII), 279 Sask. R. 252 R. v. Osecap, 2006 SKCA 69 (CanLII), 289 Sask. R. R. v. Campeau, 2009 SKCA (CanLII), 320 Sask. R. 132 R. v. Bellegarde, 2010 SKCA 15 (CanLII), 346 Sask. R. 161 R. v. Janvier, 2011 SKCA 133 (CanLII), 377 Sask. R. 129 R. v. Asapace, 2011 SKCA 139 (CanLII), 377 Sask. R. 210. [51] The Crown also asks for the following ancillary orders: an order pursuant to s. 109(1) of the Criminal Code prohibiting each of Calvin Klemenz and Thomas Matychuk from possession of firearms; an order pursuant to s. 487.052(1) for the taking of bodily substances for the purposes of forensic DNA analysis from each offender; and, an order under s. 490.012 requiring Calvin Klemenz and Thomas Matychuk each to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10. [52] The Crown indicates that Calvin Klemenz has been in custody in relation to these charges since April 11, 2012. The Crown indicates that Thomas Matychuk has been in custody in relation to these charges since July 17, 2012. The Crown submits that both offenders should be given 1:1 credit for pre-sentence custody. DEFENCE SUBMISSION ON SENTENCE Calvin Klemenz [53] It is the position of counsel for Calvin Klemenz that the appropriate range of sentence for Calvin Klemenz for this offence is sentence of approximately six years incarceration less credit for pre-trial custody time. Defence counsel acknowledges Calvin Klemenz is only entitled to 1:1 credit for his remand time. Defence counsel suggests that the cases referred to by the Crown present circumstances which were more aggravating than the circumstances of this offence. Defence counsel refers to Calvin Klemenz’s strong family and community support. He submits the court should consider the letters of support filed on Calvin Klemenz’s behalf. He also points to Calvin Klemenz’s attempt to make positive steps in his life, including his work at recovery from addiction, the taking of two bible study classes and life skills training class, as well as working towards his grade 12 GED, as mitigating circumstances. Counsel points out that Calvin Klemenz has had no institutional infractions while on remand. Defence counsel suggests that the fact that Calvin Klemenz may have been convicted as party may be mitigating factor in sentencing. Thomas Matychuk [54] It is the position of counsel for Thomas Matychuk that the appropriate range of sentence for Thomas Matychuk for this offence is sentence in the range of six years incarceration less credit for pre-trial custody time. Defence counsel suggests that six year sentence is significant and sends significant message addressing the concerns of denunciation and deterrence. Defence counsel suggests that in the cases referred to by the Crown, the circumstances were more aggravating than those in this offence. Defence counsel refers to Thomas Matychuk’s family support including that of his mother and sisters and Thomas Matychuk’s attempt to take positive steps in his life. Thomas Matychuk has acknowledged his addiction issues and is attempting to resolve them. He has taken part in bible studies and whatever programing was available while on remand. He has had no institutional infractions while awaiting trial. Defence counsel also suggests that the fact that Thomas Matychuk may have been convicted as party may be mitigating factor in sentencing. [55] Counsel on behalf of Thomas Matychuk also suggests that Thomas Matychuk is entitled to the one and one-half credit for time spent in custody prior to sentence. Counsel refers to s. 719(3.1) of the Criminal Code and asks the court to consider providing Thomas Matychuk with that credit. [56] Defence counsel have provided me with the following cases to assist in my deliberations: R. v. Mullins, 2011 SKQB 478 (CanLII), 388 Sask. R. 221 R. v. G. (L.L.), 2011 MBQB 269 (CanLII), 273 Man. R. (2d) 207 (aff’d by 2012 MBCA 106 (CanLII), 284 Man. R. (2d) 285) R. v. Badger, 2013 SKQB 347 (CanLII), [2013] S.J. No. 615 (QL) R. v. Waffle, 2013 SKQB 186 (CanLII), 421 Sask. R. R. v. Morin, 2013 ABPC (CanLII), [2013] A. J. No. 26 (QL) R. v. C. (E.B.), 2005 ABCA 61 (CanLII), 363 A.R. 111 R. v. Chisholm, (1985) 1985 CanLII 3587 (NS CA), 18 C.C.C. (3d) 518, 67 N.S.R. (2d) 66 (N.S.S.C.). [57] Defence counsel also has raised the issue of parity of sentence both in relation to sentences in other cases but also as between these offenders and the third accused charged for this incident. Defence counsel submits that the third accused involved in this incident is being treated in substantially different way by the Crown, to the extent that the Crown may be suggesting dramatically different sentence for this third offender. The third offender has been charged but has yet to enter plea and no sentence has been imposed on this individual. [58] As stated, it is incumbent upon judges to sentence in accordance with the principles of sentencing, beginning with the fundamental principle spelled out in s. 718.1 of the Criminal Code. This fundamental principle is this: sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The gravity of an offence lies in its nature, in its comparative seriousness, and in the harm caused in its commission. The degree of the responsibility of the offender lies in the extent of the offender’s moral culpability in committing the offence. [59] Here, the offence committed by Calvin Klemenz and Thomas Matychuk constitutes grave and serious offence. The offence of break and enter and commit aggravated sexual assault is an indictable offence punishable by as much as life imprisonment. This speaks to Parliament’s view of the gravity of the offence when compared with others, and to the gravity relative to the circumstances in which it may be committed. [60] Here, the circumstances in which the offence was committed, coupled with the harm caused to F.J., amount to very serious version of break and enter dwelling house and commit aggravated sexual assault. Extreme violence and extreme sexual violence was perpetrated on the victim. Serious personal injury was caused to the victim. The injuries caused had foreseeable physical and psychological consequences of substantial, even enduring, nature. The gravity of the circumstances of this offence is extremely severe and serious, and the harm caused profound. [61] The degree of responsibility of each of Calvin Klemenz and Thomas Matychuk is significant. While it is not clear as to who inflicted what blows on F.J., it is clear from the verdict and the evidence supporting the verdict that both Calvin Klemenz and Thomas Matychuk acted either as principles or as aiders to each other in these offences. These offenders acted with some forethought. They broke and entered Ramco Paving to steal. While neither may have expected someone to be living at Ramco when they drove in the Ramco lot, one of the perpetrators stuck their head into F.J.’s home and saw that F.J. was inside the home. This person went back out of the trailer and then Mr. Klemenz and Mr. Matychuk entered F.J.’s home. At that point they were both aware that there was an individual living in the trailer. They entered F.J.’s home and beat F.J. by stomping on his neck and back and by hitting him repeatedly with mallet hammer, all the while robbing him of his wallet, cell phone and electronic equipment. They then left the home. They returned shortly thereafter and re-entered the home to further violently assault F.J., this time both physically and sexually. They participated in the attacks in wanton disregard of the law and the well-being of the victim F.J., taking advantage of F.J. in particularly vulnerable circumstances. Calvin Klemenz and Thomas Matychuk both have extensive experience in the criminal justice system. They each may be taken to have clearly appreciated the seriousness of what was undertaken along with the prospect of being held responsible. Still they each persisted in the offence, leaving behind victim who suffered lasting physical and psychological harm. Calvin Klemenz and Thomas Matychuk are each morally culpable for the offence and injuries caused to F.J. Each are equally culpable for the essential substantive elements of the offence, including the fault component. [62] The gravity of this offence is severe in relation to each offender. The degree of responsibility and moral culpability of each offender is significant. [63] court is also required, pursuant to s. 718.2(b), to ensure that any sentence which it imposes is similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. The purpose of parity is to ensure fairness by avoiding disproportionate sentences amongst convicted persons. If the facts and circumstances of two offences are substantially similar, there should be equivalent or like sentences. However, sentences for particular offences do vary to some degree based on the primary concern in respect of sentence, the nature of the crime and, of course, the individual offender. Sentencing Jurisprudence [64] have canvassed the relevant decisions of the Saskatchewan Court of Appeal and various decisions of other courts which have not been subject to appeal, including the cases provided to me by Crown and defence. These cases provide review of the sentencing cases in situations similar to the one before me at present which assist with the principle of parity. will refer to some of them. [65] will deal firstly with authorities dealing with sentences in relation to sexual assaults perpetrated in the course of home invasion. [66] In Osecap, supra, the offender was convicted of break and entering dwelling house and committing robbery, contrary to s. 348(1)(b) and aggravated sexual assault under s. 273(2). In that case, the victim was an 88 year old woman. She suffered blow to her temple which caused acute internal hemorrhage. She had gouges in her thighs and other injuries. She was found by relatives in an unresponsive condition. The accused, Osecap, had over 89 previous convictions, including 11 assaults, the majority of which had occurred in the last 15 years. The court held that the offender’s crimes were said to be escalating in violence. The offender was sentenced to 15 years imprisonment with four year’s credit for remand. He appealed. The Saskatchewan Court of Appeal in 2006 dismissed his appeal. In the course of its decision, the Court of Appeal noted that 15 years was at the top of the range but not outside the range. The court said at para. 6: Finally, the appellant argued that the 15 years of incarceration was excessive. It should be noted that this was crime of extreme gravity. This Court has recently commented in R. v. Pelly on the need to denounce an offence of this nature and on the need, after the accumulation of long record, to put deterrence and denunciation in the foreground. The home invasion by itself would attract severe sentence, as would the aggravated sexual assault. In our view review of the Pelly case, among others in this jurisdiction, and the authorities referred to in Pelly show this sentence to be, albeit severe, within the range that was open to the trial judge to impose. We are of the view it is near the top of the range for the facts here, but we cannot say it is outside it. Accordingly, this sentence appeal is dismissed as well. [67] In R. v. Keenatch, 2009 SKPC 72 (CanLII), [2009] S.J. No. 395 (QL), the offender was convicted of 15 offences, including aggravated sexual assault and attempted murder. The conviction for attempted murder and aggravated sexual assault stem from the same occurrence where the offender broke into home. When the occupants of the home returned, the offender re-entered wearing mask. He grabbed the victim from behind, stabbed her near the eye and second time near the temple. He stabbed her third time in the chest. While the victim was on the floor, the offender placed one hand around her throat and inserted his fingers into her vagina before stabbing her several times in the back and choking her into unconsciousness. The offender had 48 previous convictions. Gladue factors (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] S.C.R. 688, [1999] S.C.J. No. 19 (QL)) were relevant. The Saskatchewan Provincial Court sentenced the accused to nine years imprisonment in addition to the two years and eight months he had spent on remand. [68] The Saskatchewan Court of Appeal, in Bellegarde, supra, reduced the offender’s sentence on appeal from 15 years to 12 years. In that case, the offender was convicted of sexual assault which was committed during home invasion and which occurred in front of the victim’s two children. The setting for the offence was the victim’s rural farmhouse and the offender and victim were strangers. In Bellegarde, the offender’s truck had jackknifed in front of the victim’s yard. She was home alone with two pre-school children. The offender came to the door and requested assistance. The victim provided phone. The offender forced his way into her home and raped the victim on two separate occasions, the second rape involving anal violation of the victim. The offender threatened to kill the victim during the course of the assaults. The offender was 35 year old aboriginal man with two children of his own, both in their teens. He had the support of his parents and he was employed at the time of the offence. He had relatively minor criminal record that consisted of driving offences. The offender was said to have violent childhood and drinking problem. He expressed remorse and shame and expressed his willingness to take treatment. Justice Richards (as he then was), writing for the court, noted that the Saskatchewan Court of Appeal had long recognized the aggravating circumstances of home invasion. Justice Richards said the following: 24 It is useful to begin the analysis of Mr. Bellegarde's position by noting that this Court has long recognized the aggravating effect of home invasion on sentencing decision. In R. v. Seymour (1994), 1994 CanLII 4672 (SK CA), 116 Sask. R. 234 (C.A.), Sherstobitoff J.A. said this: ... Crimes of this nature are the very crimes that give rise to public concern as to whether the justice system is adequately protecting the public from what many perceive to be continuing rise in violence and lawlessness in our society. The duty of the court in such cases is to protect the public right to be secure in one's home and the public right to be free from gratuitous and unlawful assaults, and to maintain public confidence in the administration of justice by imposing penalties commensurate to such crimes. The sentences must also be of sufficient force to deter [the accused] as well as others from committing such crimes in the future. 25 The aggravating character of home invasions in relation to the offences of stealing firearms, unlawful confinement, robbery, extortion and break and entry with intent was ultimately codified by Parliament in 2002 in the form of s. 348.1 of the Criminal Code. It reads as follows: 348.1 If person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to dwelling‑house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling‑house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling‑house was occupied; and (b) used violence or threats of violence to person or property. [69] The offender Bellegarde maintained that the appropriate range of sentence was eight years. Justice Richards noted the following aggravating and mitigating circumstances in that case: 55 ... In terms of aggravating factors, the following points must be noted: (a) A.B. was acting as Good Samaritan and provided assistance to Mr. Bellegarde, (b) A.B. was vulnerable in that she lived on farm site removed from other people, (c) the assault itself was, by definition, extremely vile, degrading and violative of A.B.'s personal integrity, (d) A.B. was raped not once but twice, the second time anally while she was bound, (e) in the course of the assault, Mr. Bellegarde threatened A.B. and suggested he might kill her, (f) A.B.'s young children watched at least some of the assault, and (g) the assault had significant effect on both A.B. and her family. It drastically undermined their sense of security and continues to haunt them. 56 There are also some considerations which, although not necessarily going to the root nature of the offence, are relevant for sentencing purposes. They are: (a) Mr. Bellegarde did not use weapon in the course of the assault, (b) A.B. apparently suffered no physical injuries and was not assaulted beyond the application of the force involved in the sexual crimes themselves, (c) Mr. Bellegarde had limited and unrelated criminal record, (d) Mr. Bellegarde had been employed and productive member of the community for many years, (e) although A.B. was required to testify at the preliminary inquiry, she was not cross‑examined and Mr. Bellegarde then pled guilty thus sparing A.B. the ordeal of giving evidence at trial, (f) Mr. Bellegarde expressed shame and remorse for the crime, offered an apology to A.B. and indicated willingness to take any and all suitable programming, and (g) Mr. Bellegarde was assessed as low to moderate risk to reoffend. [70] Justice Richards went on to note that the Saskatchewan Court of Appeal, in Osecap, supra, had commented that sentence of 15 years was at the top end of the range for an egregious aggravated sexual assault. Justice Richards noted that in Bellegarde, the assault was not an aggravated sexual assault and should not attract the same sentence. He said at paras. 57 In light of all of these factors, it is apparent that Mr. Bellegarde's offence should attract lesser sanction than those imposed in cases like R. v. Pelly and R. v. Osecap. In Pelly, it will be recalled, the offender had record involving over 100 convictions. The criminal activity at issue consisted of two separate home invasions where, in each, Mr. Pelly inflicted serious injuries on his victims. In R. v. Osecap, the accused also had an extremely long record which included more than ten assaults. He seriously injured an elderly woman in the course of robbery and an aggravated sexual assault. Notably, the 15 year sentence in that case was described by this Court as being near the top of the applicable range. As result, it can be seen that the 15 year sentence imposed on Mr. Bellegarde does not properly reflect the principle of parity. 58 It would no doubt be difficult to properly describe the fear and degradation A.B. experienced as result of Mr. Bellegarde's attack. Nonetheless, it is our duty to ensure that sentences comply with the requirements of the Criminal Code. As result, the sentence imposed on Mr. Bellegarde must be set aside. Taking into account all of the relevant factors listed above, as well as the applicable sentencing authorities, the appropriate period of imprisonment in this case is 12 years. This, obviously, is still very heavy sentence and one which reflects our complete agreement with the sentencing judge about the need to protect the residents of rural and remote areas from the sort of crime committed by Mr. Bellegarde. The sanctions imposed in cases of this kind must be severe and must reflect the right of the residents of this Province to feel safe in their own homes. [71] In Asapace, supra, the offender had been sentenced to incarceration for aggravated sexual assault for nine years. The offender appealed to the Saskatchewan Court of Appeal, but the appeal was dismissed. In that case, the offender and victim had dated for year. At the time of the incident the two had split up and the victim was involved with someone else. The victim and her new boyfriend were in the victim’s house in her second story bedroom when the offender entered the bedroom and attacked the boyfriend. The boyfriend jumped out of the window, naked, and contacted police. The victim was left alone with the offender. The offender hit her with an aluminum baseball bat causing deep gash on her head. He then punched, kicked, kneed and stepped on her. He hit her twice more with the bat on the back and ankle. The victim wrestled control of the bat and threw it out the window. The offender then began to beat on her legs and body with coat hangers. He threatened to kill her if she made any noise. He then forced her to wash herself and forced her to provide fellatio to him, intermittently striking her in the face as she did so. The chain of events was only brought to an end when police entered the home. The victim suffered significant injuries. She required eight stitches to close her head wound and required half cast for her ankle in order to walk. She experienced extensive bruising and spent day in hospital. Justice Caldwell, in dismissing the appeal from sentence, said the following: 77 Mr. Asapace sought leave to appeal from his global sentence of nine years imprisonment. would grant leave, but deny the appeal from sentence. custodial term of nine years is at the high end of the range but not demonstrably unfit in the circumstances. 78 The judge imposed the global sentence of nine years in respect of the aggravated sexual assault conviction discussed above (s. 273 of the Criminal Code) and eight other offences to which Mr. Asapace had either plead guilty or of which he had been convicted after trial, including uttering threat to cause death (s. 264.1(1)(a)), assault (s. 266), assaulting peace officer (s. 270(1)(a)), assault causing bodily harm (s. 267(b)), failure to attend court (s. 145(2)(a)), failure to comply with undertakings (s. 145(3)), and failure to comply with recognizance (two counts) (s. 145(3)). 79 Importantly, other than the s. 270(1)(a) assault on peace officer, Mr. Asapace perpetrated each of the assaults and the aggravated sexual assault on the same woman, who was, when the assaults occurred, in domestic relationship with him and, at the time of the aggravated sexual assault, his recent ex‑girlfriend. Furthermore, as is evident from these reasons, the circumstances of the aggravated sexual assault are particularly execrable having occurred in the sanctity of the complainant's home, after Mr. Asapace had severely beaten her with his fists, feet, knees, baseball bat and coat hangers, after he had forced her to bathe preparatory to the sexual assault, and after he had threatened her with death. The judge described the circumstances of the sexual assault as "vicious", "prolonged" and "dehumanizing". 80 In my judgment, on these facts, the judge correctly emphasized the sentencing objectives of deterrence, denunciation and protection of the public in imposing global sentence of nine years, less three years credit for 18 months of custody pending trial; which is fit sentence consistent with the gravity of Mr. Asapace's offences and his moral culpability in committing them. [72] In R. v. G. (L.L.), 2012 MBCA 106 (CanLII), supra, the Manitoba Court of Appeal reduced 10 year sentence to five years. In that case, the complainant was intoxicated and passed out in her bed. The accused broke into the complainant’s home and sexually assaulted her in her bedroom while two of her children, K. and V., watched. The complainant was unaware of the sexual assault. The Manitoba Court of Appeal indicated that the sentence imposed was unjustly harsh and unfit and suggested that the sentencing judge erred when he found that the circumstances of the offence were analogous to home invasion robbery and then imposed sentence in accordance with the Manitoba Court of Appeal case in R. v. Pakoo (K.G.), 2004 MBCA 157 (CanLII), 190 Man. R. (2d) 133. [73] In Morin, supra, the offender pled guilty to break and enter dwelling house and commit sexual assault causing bodily harm, contrary to s. 348(1)(b), uttering threats to cause the complainant bodily harm contrary to s. 264.1 and unlawful confinement contrary to s. 279(2) of the Criminal Code. The circumstances involved 79 year old woman who was asleep in her home. The offender broke in and sexually assaulted the victim. He attempted both vaginal and anal intercourse and threatened the use of weapon. The court noted that the offence took place in the context of home invasion and involved major sexual assault which terrorized the complainant and inflicted both physical and psychological injuries. starting point of eight years for such an offence was the law in Alberta. The offender had dated and unrelated criminal record with no history of violence. The Alberta Provincial Court judge indicated that the starting point established by the Court of Appeal for an offence of this nature is eight years incarceration. The trial judge found the circumstances were more severe and sentenced the offender to nine years incarceration. [74] Offences for assaults other than sexual assaults committed in situations involving home invasion are also instructive. In R. v. Olivares, 2004 SKCA (SentDig) 25, the offender had been stabbed by the victim year prior to the offence in question and he was nearly killed. The offender, seeking revenge, along with four to seven other people, stormed the home where the victim was said to be hiding. The victim’s arm was broken and he required numerous stitches for cuts, one of his hands was badly smashed. second victim suffered multiple open wounds to his forearm. weapon was discharged in the course of the events. mother and her young child were present at the home. The offender was 24 with grade 10 education. He worked as labourer for his uncle and he had prior record going back nine years including 25 charges of multiple assaults and robbery convictions. The accused was sentenced to serve six and one-half years minus time served on remand. The appeal from sentence was dismissed. [75] In R. v. Morash, 2006 SKCA 59 (CanLII), 279 Sask. R. 38, the accused broke and entered dwelling house and committed an aggravated assault. The incident began when teenager incited others to attend house to fight the occupants. large contingent of youths arrived at the home. The doors were broken down, the home was ransacked and multiple youths were engaged in fighting. The offender and his co-accused entered the house, taking part in the fight. They were looking for an individual who had thrown beer bottle at their car. Two individuals emerged from closet saying they had nothing to do with the incident. The two were badly beaten and one of the victims was struck in the head with whiskey bottle. The other victim was knocked unconscious and suffered brain damage. The offender here was sentenced to six years and eleven months which was upheld on appeal. [76] In Pelly, supra, the Crown appealed the sentence of an offender convicted of robbery, armed robbery, break and entry, and commit theft in relation to the dwelling houses of two separate victims. The offender was sentenced to six years of incarceration at trial, but the appeal was allowed and global sentence of 15 years was imposed. [77] The Court of Appeal in Pelly indicated that the objectives of deterrence, denunciation and protection of the public were paramount. The court also says that the initial sentence did not give adequate expression to the gravity and aggravating circumstances of the offences or the offender’s responsibility for them. The court noted that there were two separate home invasions which caused significant injury to two victims. Both home invasions were extremely violent and the first victim was stabbed twice in the chest and suffered various injuries. The second home invasion occurred few days later when the offender broke into hotel room and struck second victim with hammer. This victim also suffered serious injuries. The offender had an extensive record spanning 30 years and including over 100 offences. Most of the convictions related to theft and property, however, there were several offences which consisted of weapons and assault charges. The offender was 45 years old and had lived through harsh childhood. He was of aboriginal descent, he never finished school and he had drinking problem. Justice Cameron said the following: 39 The fact an offence such as robbery is committed in the context of "home invasion" has long been taken to constitute an aggravating circumstance within the implicit contemplation of section 718.2(a), and serious one at that. As noted by Sherstobitoff J.A. in R. v. Seymour (1994), 1994 CanLII 4672 (SK CA), 116 Sask.R. 234 (Sask C.A.) at 236: ... The point finds further illustration in the frequently cited case of R. v. Matwiy (1996), 1996 ABCA 63 (CanLII), 105 C.C.C. (3d) 251 (Alta. C.A.). 40 Following the decision in these and other such cases, when it became apparent that "home invasion" as an aggravating factor warranted express recognition and clarification, Parliament amended the Criminal Code to that end. This was done by the addition in 2002 of section 348.1, which reads thus: 348.1 Aggravating Circumstance‑home invasion‑If person is convicted of an offence under any of subsection 279(2) or sections 343, 346 and 348 in relation to dwelling‑house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling‑house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling‑house was occupied; and (b) used violence or threats of violence to person or property. ... 51 Returning to the case at hand with the foregoing in mind, we note that both the robbery of Mr Nagy and the armed robbery of Mr Mohl occurred in the context of home invasion as an aggravating circumstance within the express contemplation of section 348.1. 52 This is substantial aggravating circumstance, as the cases demonstrate, and offences committed in these circumstances, robberies in particular, are customarily visited with sentences in the order of seven to 10 years, or even more depending on the presence of other aggravating factors. Judged in this light, the sentences imposed on the accused‑three years in relation to each of the primary offences‑may be seen to fall appreciably short in accounting for these aggravating circumstances. 53 On the whole, then, we are of the respectful opinion the sentences under appeal do not give adequate expression to: (i) the objectives of deterrence, denunciation, and protection of the public; (ii) the gravity of the offences and the degree of responsibility of the accused, as contemplated by the fundamental principle of sentencing mentioned in section 718.1 of the Criminal Code; and (iii) the aggravating circumstance that the offences occurred in the context of home invasions, as expressly recognized by section 348.1. It follows that we have decided to allow the appeal and vary the sentences. ... 57 It must be clear to all that crimes of this nature strike at the very core of peaceful and safe society, violate the security of the home, and often result in lasting physical and psychological injury. They are terrifying crimes, and it is imperative they be treated with the utmost seriousness in the interest of preserving public safety and upholding public confidence in the administration of justice. So, all should know that the courts of this province, in step with those of others, will come down hard on violent crimes entailing "home invasions" in order to protect the public from the invasiveness and violence associated with them. 58 Having regard for this, and for everything we have had to say of the matter, including the gravity of the offences and the aggravating circumstances, we have decided to set aside the sentences imposed in the Court of Queen's Bench in relation to the primary offences committed by the accused, namely the robbery involving Mr Nagy offence and armed robbery involving Mr Mohl. We have also decided to impose in its place global sentence of 15 years in respect of these offences, to be followed by six year period of community supervision as ordered by the trial judge. [78] In Payne, supra, the offender was convicted at trial for three counts of assault with weapon, breaking and entering, and three breaches of conditions from earlier charges. The offender was initially sentenced to two years less day. The Crown appealed. The offender had entered dwelling house and had struck the occupants with the blunt end of machete. The offender had an extensive record and difficult childhood. However, he was new father, and had the support of his family. He was employed at two jobs. [79] The Court of Appeal allowed the appeal, and imposed sentence of four years. Smith J.A. held that the initial sentence was demonstrably unfit in light of the aggravating circumstance of the home invasion. In the course of judgment, Smith J.A. noted: [18] The Crown takes the position that the trial judge erred in distinguishing Pelly, and that the effect of that decision is to require, at minimum, sentence of seven years incarceration in this case. Counsel argues that the trial judge erred in emphasizing the possibility of rehabilitation in this case, and that the governing sentencing objectives in any case falling within s. 348.1 are denunciation and deterrence. While Crown counsel concedes that the circumstances in Pelly were considerably more grave than those in the instant case, he argues that this Court in Pelly established range starting at seven years, for the least serious case of "home invasion" (for mature offender, of previously good character, who enters an early guilty plea, in instances of no significant injury), to be increased from there in accordance with factors that increase the gravity of the offence or the circumstances of the offender. It is the Crown's argument, in effect, that Pelly established "starting point" sentence of seven years, which can be increased, in appropriate circumstances, but not decreased. [19] In my view, Pelly should not be read as the Crown urges us to read it. Pelly involved two separate extremely violent home invasions for which consecutive sentences were imposed… The sentence imposed by this Court in relation to this incident, taken alone, was seven years incarceration, before taking into account credit for time spent on remand. In addition, as the trial judge in the instant case pointed out, all of the cases relied upon in Pelly reflected similarly violent circumstances. Moreover, as has been noted, the circumstances of the two offenders are considerably different. [20] The circumstances of the instant case, while without question serious, are nonetheless quite distinct. At heart, they represent an altercation between persons who knew each other, which, admittedly, took place in dwelling house. The respondent and his friends gained entry to the house without the permission of the victims and the trial judge rightly found that the circumstances fell within s. 348.1. He treated this as an aggravating factor. Yet, significantly, no one was seriously injured and the trial judge found as fact that significant injury was not intended. [22] At the same time, it is my respectful view that the trial judge nonetheless failed to give sufficient weight to the aggravating factors that did exist in this case. As was pointed out in Pelly, central purpose of s. 348.1 is to recognize the peculiar vulnerability of victims who are subject to violence or threats of violence in their homes, where they are out of sight of passers‑by and often unable to summon help. In addition, this was violent offence. The respondent entered this home wielding machete. While the trial judge found that the respondent intentionally struck with the dull side of the machete, and did not intend to use it as knife, he clearly meant to use it, at the very least, for intimidation, and did, in fact, strike the three victims with it. [23] This Court has previously recognized the need to be vigilant to protect those who work in situations that make them particularly vulnerable to robbery and violence, such as all night convenience stores or gas bars. No one can doubt that, had the respondent entered such an establishment, wielding machete, he would have been subject to minimum prison term of three years, even if the machete were used only to intimidate. The Crown rightly argued that it is unacceptably disproportionate to the gravity of the offence to treat home invasion, armed with such weapon, any less seriously. It is more, not less, grave. [80] In Fraser, supra, the offender appealed sentence of eight years for eight offences including assault with weapon, unlawful confinement and breaking and entering an occupied dwelling house. The accused had broken into his mother’s home and violently assaulted her. The accused had various mental health issues. The appeal was dismissed by Chief Justice Klebuc (as he then was) who noted that the sentence was within the appropriate range of seven to ten years for robbery or break and enter which occurred in the context of home invasion. Justice Klebuc noted: 25 reject the argument that there is "typical" home invasion and that Mr. Fraser's conduct does not constitute such an invasion. home invasion is not defined by the relationship between the parties, nor the identity of the occupants. Mr. Fraser knew he was not invited to enter the home; in fact, he knew there was non‑contact order issued against him with regard to his mother. Furthermore, it is irrelevant that the house was owned by his mother, as there is nothing in the case law to suggest that "home invasion" requires the home to be occupied by strangers. ... 27 The Court in Pelly, supra indicated that robbery or break and enter occurring in the context of home invasion is customarily visited with sentence in the range of seven to ten years. ... 30 The Court in R. v. Payne, 2007 SKCA 28 (CanLII), (2007), 293 Sask. R. 31 affirmed (at para. 22) its earlier statement in Pelly, supra that, "a central purpose of s. 348.1 is to recognize the peculiar vulnerability of victims who are subject to violence or threats of violence in their homes." It further noted that the range of applicable sentences for home invasion is materially affected by the degree of the offender's violence in carrying out the offence. Based on the degree of violence by the offender, namely, that the offender broke into the victims' home, threatened them and struck them with the dull side of machete for the purposes of intimidating them, but not with the intention of cutting them, the Court set aside sentence of two years less day and imposed sentence of four years. 31 reject Mr. Fraser's submission that the sentencing judge in the instant case interpreted Pelly too restrictively and thereby failed to craft fit sentence pursuant to s. 718.1. The sentencing judge clearly took into account the degree of violence on the part of Mr. Fraser, carefully weighed it against the violence involved in Pelly, and assessed an appropriate sentence within the applicable range. Further, when the violence of Mr. Fraser is weighed against the greater violence by the offender in Pelly, and the lesser violence by the offender in Payne, the result confirms his sentence is not demonstrably unfit. 55 As discussed earlier, this Court in Pelly, supra suggested range of sentence between seven and ten years for offences occurring in the context of home invasion and also clearly indicated that such range is only starting point which may be adjusted to account for any relevant mitigating and aggravating factors. [81] In Campeau, supra, the Crown appealed from global sentence of 18 months imprisonment following the offender's conviction for breaking and entering dwelling‑house to commit an assault. The victim had been struck about her hands and face, had some of her hair pulled, her nose fractured, and was made the subject of threatening and degrading language. The offender had long criminal record, and had experienced difficult childhood. The offender was the father of three children. Chief Justice Klebuc (as he then was) dismissed the appeal. [24] The submissions by the parties suggest that uncertainty exists as to whether "home invasion" for the purposes of s. 348.1 is synonymous with "home invasion robbery". Simply put, it is not. Section 348.1 creates specific aggravating circumstance which is to be taken into account in addition to all other aggravating circumstances, when imposing sentence for the offence of unlawful confinement contrary to s. 279(2), robbery contrary to s. 343, extortion contrary to s. 346, or break and enter contrary to s. 348(1) ("the listed crimes"), if any of these offences are committed at or in relation to dwelling‑house. The essential elements of home invasion are: (1) occupancy of dwelling‑house at the time one of the listed crimes was committed; (2) knowledge or recklessness on the part of the offender as to whether the dwelling‑house was occupied; and (3) actual or threatened use of violence to persons or property. The additional factors in R. v. Matwiy and Fraser, supra relating to "home invasion robbery" are not per se essential to found "home invasion". From this starting point, turn to the authorities relied upon by the Crown. [32] In sum, Pelly does not impose mandatory starting point sentence of seven years for all forms of home invasion. Rather, as noted in Payne, each case involving home invasion within the meaning of s. 348.1, must be decided on its own facts having regard to aggravating factors such as (i) the motive for unlawfully entering the dwelling‑house; (ii) the degree of violence inflicted on the victim; (iii) the nature of the accompanying listed offences; and (iv) other factors relevant to the listed offences. [34] The answer to the above question rests on whether sentence of four years is "substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes. Given that this Court in Payne held that sentence equivalent to four years for home invasion involving minor assault with weapon was within the acceptable range, the sentence under appeal can only be demonstrably unfit if it brings into play one or more of the applicable sentencing factors not considered in Payne. [37] In my view, neither the aggravating factors nor the submissions offered by the Crown regarding the factors of denunciation, deterrence, rehabilitation and safety of the public, so materially differ from those considered in Payne as to warrant dramatic increase in the sentence imposed by the learned trial judge. While the sentence under appeal might be viewed as light, or on the edge of what might be considered to be within the applicable range, nothing before me indicates that it is demonstrably unfit. [82] The Saskatchewan Court of Appeal, in Campeau, supra, indicated that for the purposes of s. 348.1, the term home invasion is not synonymous with home invasion robbery. The essential elements of home invasion under s. 348.1 are: 1) occupancy of the dwelling house when the listed crime was committed; 2) knowledge or recklessness of the offender’s part about whether the dwelling house was occupied; and 3) actual or threatened use of violence to persons. The Court of Appeal said that under this section, aggravating factors include the motive underlying the entry, the degree of violence inflicted on the victim, the nature of the accompanying listed offence and other factors related to the listed offence. [83] In R. v. Keepness, 2010 SKCA 69 (CanLII), 359 Sask. R. 34, the Crown successfully appealed the sentence for manslaughter against three offenders. The manslaughter had occurred during home invasion. The offenders were part of group of four men who had forcefully entered home in an attempt to steal drugs. During the course of the home invasion, the offenders seriously injured two occupants of the house. third occupant was killed. The trial judge rendered sentence of eleven and one-half years for manslaughter and concurrent sentences of seven years apiece for the aggravated assault of the other two victims. The appeal was allowed. The sentence of eleven and one-half years for the manslaughter was substituted for sentence of 15 years. The aggravated assault sentences were left undisturbed. [84] The Manitoba Court of Appeal, in R. v. R.(P.S.), (1999) 1999 CanLII 4397 (MB CA), 138 Man. R. (2d) 75, [1999] M.J. No. 238 (QL), spoke strongly on the issue of sentencing in home invasion type cases. In that case, two assailants broke into the home that was occupied. The occupants were asleep and the two demanded money, pointing rifle at one of the occupants. Denunciation and deterrence are of paramount importance. The Court of Appeal indicated that incarceration in the range of seven to ten years was the appropriate sentence. [85] In R. v. Lemaigre, 2010 SKCA 158 (CanLII), 366 Sask. R. 299, the Crown appealed from sentence of five year’s imprisonment for serious home invasion. Two occupants of the home were assaulted, and the other occupants had been threatened with weapons. The two offenders had tried to remove one of the occupants from the home. The offenders were carrying loaded shotgun and two foot machete. The machete was swung, and the shotgun was pointed, at numerous occupants of the home. Children were present in the home at the time of the invasion. Lemaigre was 19 years old, and did not have lengthy record. He expressed remorse, acknowledged the terror that the victims faced, and accepted responsibility for his actions. He did not generally get into trouble unless he was drinking. He had family support. The appeal was dismissed. During the course of the judgment, Smith J.A. stated: [15] The Crown argues that the sentencing judge erred in holding that there was "four year starting point" for sentences for home invasions. do not read the sentencing decision this way. The trial judge appears to me to examine each decision from this Court with care and note the ways in which the offences before him were either less or more serious than the offences in those cases. He was clearly persuaded that this offender was susceptible to rehabilitation in light of his youth, positive reports from the family and the community, his limited criminal record and his remorse. [16] This Court can interfere only if the sentencing judge makes an error of law or imposes sentence that is demonstrably unfit. While we are of the view that the sentence imposed in this case was at the low end of the available sentences for an offence of this degree of seriousness, we are unable to conclude that it was demonstrably unfit when considered in light of the personal circumstances of this offender. [86] In R. v. Montgrand, 2010 SKCA 159 (CanLII), 366 Sask. R. 303, the Crown was successful in its appeal of the sentence of Montgrand, who was the co‑accused of Lemaigre, discussed above. Montgrand had much more significant record than Lemaigre; he presented no strong record of employment and/or academic success. Furthermore, he showed no remorse. The sentence of five years was set aside for an effective sentence of seven years, less time served. [87] Very recently, the Saskatchewan Court of Appeal, in the case of R. v. Debigare, McQuinn and Schachtel, 2014 SKCA (CanLII), [2014] S.J. No. (QL), the Crown was successful in its appeal of suspended sentence imposed on three co-accused. At the time of the offence, Schachtel persuaded the other two offenders to beat up the victim. Neither Debigare nor McQuinn knew the victim. McQuinn drove the three offenders to the victim’s home where he lived with his girlfriend, who was eight month’s pregnant. Debigare armed himself with sledge hammer and McQuinn armed himself with box cutter style knife. He knocked at the door and when the door was opened, Debigare rushed into the home wielding sledge hammer. He struck the victim’s dog with the sledge hammer causing severe injury to the dog. Debigare continued swinging the sledge hammer, causing damage to the home. McQuinn followed, brandishing the knife. He found himself facing two men who were visiting the residence and confronted them with the knife and told them to sit down. He then followed Debigare to the back of the home. Schachtel entered the home after the other two accused and she was known to all of the individuals. Upon her entry, one of the female occupants of the home retreated to back bedroom where her baby had been sleeping in crib and locked herself in the room with the baby. The victim and his girlfriend were in their bedroom with the door closed. Debigare smashed their bedroom door off its hinges with the sledge hammer, entered the room and began to punch the victim. The assault was brief. Either Debigare or McQuinn pushed the victim’s girlfriend down onto the bed. Schachtel then entered the room and began to assault the victim’s girlfriend. She struggled with her on the bed and then struck her repeatedly with pillow. The offenders all then left the home, but before doing so, Schachtel twice warned the occupants that if any of them said anything or called the police, she and her accomplices would be back for retribution. Debigare had no previous criminal record, nor did McQuinn. Both had positive post-offence conduct. Debigare was sentenced to 18 month’s imprisonment, followed by an 18 month probation order. McQuinn was sentenced to 10 month’s imprisonment, followed by an 18 month probation order, the court having determined that his moral culpability was less than Debigare’s. Schachtel had previous criminal record and was facing charges of breach of probation for her probation order that she received by the trial judge. Schachtel received sentence of two years less day, followed by three year probation. The court articulated that the leniency of the sentences, especially in respect of Debigare and McQuinn, was also warranted by their respective post-sentence conduct and the aberrant nature of their offending in this case. [88] Sentences relating to convictions for sexual assault not in home invasion situation, are also instructive. In R. v. P.(F.K.), 1985 SKCA (SentDig) 90, the offender was convicted of aggravated sexual assault. The offender was illiterate, had drug problem, and exhibited bizarre and violent behaviour. He had exhibited an ongoing pattern of violence in the community. The victim was 58 year old widow. Her jaw was fractured, and she suffered extensive cuts and bruises. She believed she would be killed during the assault. The assault was categorized as one of "stark horror". The original sentence of seven years was reduced on appeal to five years. [89] Badger, supra, is case included in the materials presented by counsel. The case concerned violent sexual assault. There had been repeated occurrences of non‑consensual sexual intercourse over number of hours between the offender and complainant. These occurrences were accompanied by physical violence. The victim was traumatized. The offender was 48. He had criminal record spanning 25 years and including 87 prior offences. Some of these prior offences had been violent. The offender was assessed as high risk to re-offend. Gladue (supra) factors were relevant. The offender was sentenced to total of eight years. [90] The cases have referred to discuss the range of sentences imposed by courts for offences similar to the one presently before me. It is clear from the cases that the sentencing objectives of deterrence, denunciation and protection of the public are the primary objectives in sentencing for these types of offences. review of the sentences imposed in relation for convictions for break and enter dwelling house and commit aggravated sexual assault indicates that the range of sentences in Saskatchewan appears to be between eight years and 15 years. The Court of Appeal in Pelly indicated that conviction for violent assault occurring in the context of home invasion robbery is customarily visited with sentence in the range of seven to ten years, or more, depending on the presence of other aggravating factors. [91] As indicated earlier, defence counsel raised the issue of parity of sentence as between Calvin Klemenz and Thomas Matychuk and third co-accused not before this Court. Defence counsel suggested that the Crown was taking significantly different position on sentence in relation to the third co-accused. Defence counsel referred me to the cases of R. v. C. (E.B.), 2005 ABCA 61 (CanLII), 363 A.R. 111 and R. v. Chisholm, supra, on the issue of parity as between co-accused. [92] In C. (E.B.), the appellant and four others broke into the victim’s home and beat the victim with baseball bat. The conflict appeared to be retribution for quarrel between the victim and the appellant’s sister that occurred earlier in the day. [93] In C. (E.B.), the appellant pled guilty to break and enter dwelling house and commit common assault. Those who acted in concert with the appellant were never arrested. The appellant refused to reveal their identities citing fear for his and his family’s safety. The Crown was unable to particularize the appellant’s role in the assault since the victim did not know who had struck what blows. The trial judge found that the appellant acted in concert with the others and accordingly stated it made no difference who struck what blow. The sentencing judge imposed an eight month custodial sentence which was upheld on appeal. Justice Hunt on appeal said the following at para. 9: There is no error in the sentencing judge's having held the appellant fully responsible for the assault. In R. v. MacIntyre (1992), 135 A.R. 166 at para. (C.A.), this Court explained that when crime is committed by gang, the involvement of each individual should not be regarded in isolation. Rather, the sentencing judge should consider the group's collective actions. "Each member of the group must be taken to know that by committing individual assaults upon victim, he advances, and even encourages, the violence of the others." Accordingly, when person acts in concert with members of group or gang to victimize single victim, that person must accept the consequences that flow from the group action. [94] In Chisholm, supra, the accused pled guilty to nine counts of break and enter and theft, five charges of break and enter with intent and one charge of attempted break and enter and theft. The accused received suspended sentence with three year probation. The accused was accompanied by at least one other person on each offence but the identities of the other perpetrators where known. [95] co-accused entered guilty pleas on all 15 offences and he was sentenced to total of 15 months in prison. Another co-accused was involved in two break and enters and was sentenced to concurrent two month terms of imprisonment and probation. Another accused took part in six offences. He pled guilty and was sentenced to an eight month custodial sentence with three year term of probation. final accused pled guilty to four offences and he was sentenced to four month’s imprisonment. All co-accused were roughly the same age and had no serious criminal records. The Crown appealed the accused’s suspended sentence and three year probation order. The Crown’s appeal was dismissed. The appeal court indicated that sentencing involves blend of many factors with aims that often conflict and with competing interests are not always harmonized. The court went on to say that generally speaking, the court should try to make the sentence conform with that imposed on co-accused for the same offence by some other court, but where there are sufficient differences and circumstances between accused and co-accused, different sentences can be justified. [96] The issue of parity as between co-offenders and co-accused has been discussed by the Saskatchewan Court of Appeal. [97] In R. v. Omoth, 2011 SKCA 42 (CanLII), 371 Sask.R. 110 Richards J.A. (as he then was) noted: [25] agree entirely with Jackson J.A.'s point that parity in sentencing is very important. It is obviously an essential consideration in the administration of criminal justice and unjustified differences in sentencing can be very corrosive of both public and offender confidence in the system. agree too that concerns about parity can be particularly acute in the case of co-accused. [26] That said, s. 718.2(b) of the Code is not absolute. Specifically, it does not automatically require that precisely the same sentence be imposed on similarly situated co-offenders. Rather, it says court must take into consideration the principle that sentence should be "similar" to sentences imposed on similar offenders for similar offences committed in similar circumstances. On this point, Lamer C.J.C. observed as follows in R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] S.C.R. 500 at p. 567: ... Sentencing is an inherently individualized process, and the search for single appropriate sentence for similar offender and similar crime will frequently be fruitless exercise of academic abstraction. As well, sentences for particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred. For these reasons, consistent with the general standard of review we articulated in Shropshire, believe that court of appeal should only intervene to minimize the disparity of sentences where the sentence imposed by the trial judge is in substantial and marked departure from the sentences customarily imposed for similar offenders committing similar crimes.[emphasis in original] [98] In R. v. Akapew, 2009 SKCA 137 (CanLII), 343 Sask.R. 155, Hunter J.A. noted: [20] The trial judge did not specifically refer to s. 718.2(b) of the Code, but her starting point appears to be the sentence imposed on the co-offender Starr. There is no principle that requires that the sentence imposed on co-offenders must be similar. In R. v. Knife, Cameron J.A. stated: 11 Counsel for the appellant submitted that even if the sentence was otherwise fit, it should be reduced because of the disparity between the appellant's sentence and that of the others. As matter of general principle, the courts seek to avoid disparate sentences, for the same or similar offences, particularly in the case of co-accused, but not without considerable qualification, for sentencing remains an individual process. The respective roles of the parties in the commission of the offence will be considered, along with their individual personal circumstances and may account, properly, for variations in sentence even in relation to the same crime. As in the case of an appellate court, faced with differing sentences, imposed by different judges, in respect of the same occurrence, the fitness of the comparative sentence will be considered and, if deemed inadequate, ignored. ... This affirms two important principles: sentencing is an individual process; and the sentence imposed on co-offender is persuasive when considering the parity principle, but if the sentence imposed on the co-offender is inadequate, it should be ignored. [21] The trial judge seemed to be of the view that the sentence to be imposed on Akapew as party to the offences pursuant to s. 21(1)(b) and (c) and s. 21(2), must be less than the sentence imposed on Starr, the principal of the offences in s. 249.1 and s. 221. This factor was emphasized by the trial judge when she considered each of the sentencing principles of proportionality, parity and totality of sentence. [22] Section 21 of the Code provides four ways person is party to an offence: (i) by committing it; (ii) aiding it; (iii) abetting it; or (iv) by having the common intention to carry out an unlawful act and to assist each other person may be liable for an offence beyond that which was initially contemplated. There is nothing in the language of s. 21 that provides that the degree of culpability is different for any of the four ways person may be party to an offence. The sentence for each offender is determined in accordance with the general sentencing principles stated in s. 718 to s. 718.3 of the Code. [99] Defence counsel submits that another participant in this event will soon receive sentence that is drastically different from the sentence that the Crown proposes here for Thomas Matychuk and Calvin Klemenz. However, contrary to the thrust of the defence counsel’s submission at this point to my knowledge, this third accused has not been convicted of any offence. Any evidence about the involvement of the third accused heard at the trial of Thomas Matychuk and Calvin Klemenz has no impact on the disposition of the third accused or her sentencing. She is presumed innocent. She is entitled to her own trial. She is entitled to plead or have trial. It is not clear whether the third accused will be found guilty of the same offences as Mr. Klemenz and Mr. Matychuk. It is not clear what findings of fact the court dealing with her charge will make. It may be that the third accused may not be convicted of the same offence for which Thomas Matychuk and Calvin Klemenz have been convicted. As well, the personal circumstances of this third accused may be different from the offenders here. In any event, she is not co-accused before this Court and at the point of sentencing Mr. Klemenz and Mr. Matychuk, the principle of parity does not extend to the third accused not yet convicted. [100] The principle of parity here applies to Calvin Klemenz and Thomas Matychuk, as between each other, and in relation to those cases where sentences have been imposed on similar offenders in similar circumstances. The cases that have earlier referred to provide me with the range of sentences on similar offenders for similar offences committed in similar circumstances which ensures that the principle of parity is addressed in sentencing here. [101] now turn to the next principle to be considered. The Criminal Code, in s. 718.2(a), enunciates that sentence must also be increased or reduced to account for any relevant aggravating or mitigating circumstance relating to the offence or the offender. Matters which are mitigating and/or aggravating must be viewed in context. Aggravating Circumstances [102] In 2002, s. 348 of the Criminal Code was amended to include s. 348.1 which codifies an offence committed in the context of home invasion as an aggravating factor for sentencing purposes. [103] Section 348.1 states that if person is convicted of an offence under s. 348 of the Criminal Code, in relation to dwelling house, the court imposing the sentence on the person shall consider, as an aggravating circumstance, the fact that the dwelling house was occupied at the time of the commission of the offence and that the person, in committing the offence, knew, or was reckless as to whether the dwelling house was occupied, and used violence or threats of violence to person or property. [104] Section 348.1 states: 348.1 If person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to dwelling‑house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling‑house was occupied at the time of the commission of the offence and that the person, in committing the offence, (a) knew that or was reckless as to whether the dwelling‑house was occupied; and (b) used violence or threats of violence to person or property. [105] dwelling house is defined in s. of the Criminal Code as: 2. ... “dwelling‑house” means the whole or any part of building or structure that is kept or occupied as permanent or temporary residence, and includes ... (b) unit that is designed to be mobile and to be used as permanent or temporary residence and that is being used as such residence; [106] In the case before me, s. 348.1 of the Criminal Code does apply. It is an aggravating factor that this offence was committed as result of Calvin Klemenz and Thomas Matychuk breaking into the home of F.J. F.J. was asleep in his home in the middle of the night. Calvin Klemenz and Thomas Matychuk broke into Ramco Paving, along with third individual. While initially the offenders may not have expected anyone to be living on the Ramco Paving property, one of the three individuals stuck their head into F.J.’s home and at that point became aware this trailer was dwelling house and that it was occupied by F.J. This person brought their head back out of F.J.’s doorway and almost immediately thereafter the three perpetrators entered F.J.’s home. They entered the home knowing it was occupied. They entered for the purpose of robbing F.J. of his property. The offenders did rob F.J. find, based on the evidence, that Calvin Klemenz and Thomas Matychuk knew the dwelling house was occupied at the time of the commission of the offence. [107] The offenders then left F.J.’s home after assaulting him and re-entered the home second time. Again, they knew the home was occupied. They re-entered to obtain F.J.’s PIN number. They violently, sexually assaulted him. They used household items as weapons on the second entry. Calvin Klemenz and Thomas Matychuk perpetrated extreme violence with the use of weapons and perpetrated threats of violence to F.J. and to F.J.’s property. It is an aggravating factor under s. 348.1 for each of Mr. Matychuk and Mr. Klemenz that the offence for which these offenders were convicted was in relation to an occupied dwelling house. [108] There are other aggravating factors here as well and these factors apply to both offenders. They include that Calvin Klemenz and Thomas Matychuk both set out with plan to commit an offence. While accept that they did not plan initially to break into home and rob an individual, they did make plan to break and enter into the Ramco premises and steal. [109] It is an aggravating factor for both offenders that the offenders used threats of violence in committing the crime, including the threat to or discussion to kill F.J. and burn down his home to conceal evidence. [110] It is aggravating for both offenders that the offenders, after threatening F.J., took his cell phone with them, such that he was unable to call for help. [111] It is also aggravating for both offenders that several weapons were used in the course of this assault including hammer, pens and the handle of frying pan. [112] It is further aggravating for each offender that they subjected F.J. to extreme violence in order to carry out that plan. The offenders repeatedly stomped on the back of F.J.’s head and back. They repeatedly struck him with hammer. They sexually assaulted him, causing harm, by shoving frying pan handle and pens up his rectum. The violence was extremely vile, degrading and violative of F.J.’s personal integrity. [113] It is further aggravating for both offenders that there were two periods of assault. Calvin Klemenz and Thomas Matychuk violently assaulted F.J. and left the premises and returned to perpetrate further violence and commit the aggravated sexual assault upon F.J. [114] It is an aggravating factor for both offenders that this violence appeared to be gratuitous violence, and certainly, the sexual assault appeared to be absolutely gratuitous violence. F.J. had complied with each and every demand made by the offenders. F.J. got down on the floor when he was told and did not resist them in any way. Yet they perpetrated extreme violence upon him and sexually assaulted him. [115] It is also an aggravating factor for both offenders that they caused serious injuries to F.J. The physical and psychological impact on F.J. is profound. The injuries to F.J. were significant, requiring hospitalization, surgery and reconstructive surgery. The impact, in terms of the ostomy, lasted for almost year. The psychological scars continue. [116] It is also aggravating that Calvin Klemenz and Thomas Matychuk left F.J. and did not seek any medical attention for him. [117] It is also aggravating that Calvin Klemenz and Thomas Matychuk committed this crime in concert with the others, such that the victim here was overcome by several people in his dwelling house. [118] It is also aggravating that Calvin Klemenz and Thomas Matychuk both profited from this crime. They both shared in the proceeds of the sale of F.J.’s property. [119] It is also aggravating that Calvin Klemenz and Thomas Matychuk both have extensive serious criminal records, each spanning some 20 years. Mitigating Circumstances [120] mitigating circumstance for both offenders is that Calvin Klemenz and Thomas Matychuk acted somewhat impulsively when finding F.J. on the premises, that is, the plan was not formulated to break into F.J.’s home and undertake this type of conduct when they started. [121] It is mitigating in respect of Calvin Klemenz that he has community and family support. It is mitigating that he has used his time on remand in positive way. It is mitigating that he is attempting to further his education in order to have skills upon his release. It is mitigating that he is attempting to work towards sobriety. It is mitigating that Calvin Klemenz is taking some bible studies, which would perhaps be form of counselling. It is mitigating that he has been on remand without incident. [122] It is mitigating that Thomas Matychuk has family support. It is mitigating that Thomas Matychuk has taken bible studies while on remand and has met with the Chaplin every week. It is mitigating that Thomas Matychuk has identified his addiction issues and is attempting to work towards sobriety. It is mitigating he has been on remand without incident. CONCLUSION SENTENCE [123] Calvin Klemenz and Thomas Matychuk both have been found guilty by jury of breaking and entering the home of F.J. and committing therein the indictable offence of aggravated sexual assault. As have said earlier, have prepared this decision in relation to both offenders, but sentencing is an individual exercise. will sentence each individual offender with regard to the principles of sentencing, the relevant factors, and the considerations and situation of each individual offender. [124] In sentencing each of Calvin Klemenz and Thomas Matychuk, the circumstances of the offence involved a home invasion and aggravated sexual assault, causing serious bodily harm to a young man. This is an offence which was horrific, almost unimaginable and grossly demeaning. The offence cuts to the core of the most fundamental values that we have as society. Calvin Klemenz and Thomas Matychuk, in committing this offence, committed an invasion of F.J.’s bodily and sexual integrity and security in his own home, place where he is entitled to feel safe. [125] The courts have consistently stressed not only the gravity of offences like this, and the level of moral culpability of the offender, but also the need to denounce and deter criminal conduct of this nature. Sexual assault constitutes substantial and gross violation of the sexual and personal integrity of the victim. Here, it resulted in serious harm to the victim. The gravity of the harm in this case is at the high end of the spectrum, based on the significant consequences which the home invasion and the aggravated sexual assault have had upon F.J., and on society and its values. Calvin Klemenz and Thomas Matychuk each have high degree of responsibility for this offence. The objectives of denunciation, deterrence and protection of the public are the primary objectives in sentencing in this case. [126] Here, the aggravating factors also apply to each offender. The victim here was vulnerable, in that he lived on site removed from other people. The assault took place in relation to dwelling house. The assault was extremely violent and degrading. The assault took place over some period of time and the offenders entered F.J.’s home twice to assault him. The offenders used weapons in the course of the assault. The victim was assaulted anally while he was bound. In the course of the assault, the victim was threatened. The assault had significant impact on the victim and drastically undermined his sense of security, and it continues to haunt him. F.J. suffered long-term physical injury. Both Calvin Klemenz and Thomas Matychuk profited from the circumstances of the offence. The aggravating factors apply to each offender. [127] While have been informed by the sentences in all the cases referred to, do not intend to review them again. am of the view that the sentence for this offence should attract sanction more serious than that imposed in the Morin case, supra, and the Asapace case, supra. The circumstances of the offence here were more aggravating and the injuries more severe and lasting than in Morin and Asapace. In examining the sentences for like offences, am also of the view that the sentence for this offence should attract lesser sanction than those imposed in Osecap, supra, as the personal circumstances and previous criminal record of the offender in that case were more serious and more violent than those of the offenders here. CALVIN KLEMENZ [128] In considering the fit and proper sentence for this offence, have considered the personal circumstances of Calvin Klemenz, and the mitigating circumstances of Calvin Klemenz. Calvin Klemenz has been employed and was productive member of the community at the time of the offence. Calvin Klemenz has been attempting to address his addiction issues. He has undertaken programming and tried to take positive steps while on remand. He has had no institutional infractions. He has family and community support. Calvin Klemenz has an extensive previous criminal record, but not for personal violence. [129] Considering the circumstances of this offence, the gravity of the offence, the level of moral culpability of Calvin Klemenz, the need to denounce and deter criminal conduct, and the need for public protection, the aggravating factors and mitigating factors, the jurisprudence with respect to sentences imposed in like situations, the fundamental objectives of sentencing and the principles of sentencing, am of the view that fit and proper sentence for this offence for Calvin Klemenz is sentence of 12 year’s imprisonment. [130] Section 719 of the Criminal Code provides that in determining the sentence to be imposed on person convicted of an offence, court may take into account any time spent in custody by the person as result of the offence. Calvin Klemenz has been in custody on these offences since April 11, 2012 and it is acknowledged by the offender that he is entitled to maximum of 1:1 credit. As result, will provide him with credit for that time on the basis of one day for each day spent in custody. am giving him credit for 22 months and three weeks for the time spent in custody. [131] The sentence I am imposing is 12 years of imprisonment for breaking and entering F.J.’s house and committing therein the offence of aggravated sexual assault. I give Calvin Klemenz credit of 22 months and three weeks for the time spent in custody, therefore the sentence to be served is 10 years and five weeks in the penitentiary. sentence Calvin Klemenz to sentence of 10 years and five weeks in the penitentiary. THOMAS MATYCHUK [132] In considering fit and proper sentence for this offence, have considered the personal circumstances of Thomas Matychuk, and the mitigating circumstances of Thomas Matychuk. Thomas Matychuk has had some significant challenges in his early life. He is product of an upbringing that caused him to be placed in foster care on numerous occasions. Thomas Matychuk has significant previous criminal record, but like Calvin Klemenz, most convictions do not relate to personal violence. Thomas Matychuk has attempted to make some positive changes in his life. He was previously involved in long-term relationship with Agnes Coldwell. He is attempting to address his addiction issues. It appears he has undertaken the full extent of programming available to him on remand. He has had no institutional infractions. He has family support. [133] Taking into account all the circumstances, including the circumstances of the offence, the gravity of the offence, the level of moral culpability of Thomas Matychuk, the need for denunciation, deterrence and public protection, the aggravating factors and the mitigating factors of Thomas Matychuk, the jurisprudence with respect to sentences imposed in like situations, the fundamental objectives of sentencing and principles of sentencing, am of the view that fit and proper sentence for this offence is sentence of 12 years imprisonment for Thomas Matychuk [134] In relation to Thomas Matychuk, defence counsel suggests that Mr. Matychuk should be given one and one-half day’s credit for each day spent in custody since July 17, 2012. Section 719(3) of the Criminal Code provides that in determining the sentence to be imposed on person convicted of an offence, court may take into account any time spent in custody by the person as result of the offence, but the court shall limit the credit for the time to maximum of one day for each day spent in custody. However, s. 719 (3.1) states that if the circumstances justify it, the maximum is one and one-half days for each day spent in custody prior to sentence, unless the reason for detaining the person in custody was stated on the record under s. 515(9.1) or the person was detained in custody under ss. 524(4) or (8). [135] Defence counsel suggests that Thomas Matychuk is entitled to one and one-half day’s credit for each day spent in custody. [136] The determination of the potential credit to be applied for the time in custody was discussed by Justice Gunn in the recent case of R. v. Taniskishayinew, 2013 SKQB 416 (CanLII), [2013] S.J. No. 716 (QL) at paras. 29 The potential credit to be applied for the time in custody turns on the interpretation of s. 719 (3) and s. 719(3.1) of the Criminal Code. Section of the Prisons and Reformatories Act, R.S.C. 1985, c. P‑20 also has some relevance. The sections of the Criminal Code provide as follows: 719.(3) In determining the sentence to be imposed on person convicted of an offence, court may take into account any time spent in custody by the person as result of the offence but the court shall limit any credit for that time to maximum of one day for each day spent in custody. 719.(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one‑half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515 (9.1) or the person was detained in custody under subsection 524(4) or (8). 30 Pursuant to s. 719(3.1), any opportunity for enhanced pre‑sentence custody credit would be unavailable for those offenders whose circumstances are caught by s. 515(9.1) or 524(4) or 524(8). These would include any accused who justice has ordered detained pending his or her trial "primarily because of his previous conviction" (515(9.1)). And it would include any accused persons who were released on bail and then subsequently ordered to be detained pending their trials as result of justice finding that they were alleged to have committed fresh indictable offence or had contravened or were about to contravene the terms of their original release orders. (ss. 524(4) and 524(8)). It is clear that ss. 515(9.1) and 524(4) or 524(8) are not applicable to Mr. Taniskishayinew. Section 719 was part of Bill C‑25, the Truth in Sentencing Act, S.C. 2009, c. 29 (the "Act") introduced by Parliament in March of 2009. The Act applies to persons charged with criminal offence after February 22, 2010, the day on which the Act came into force. The Act introduced four substantive amendments to the Criminal Code, which are designed to limit the amount of credit that may be assigned on sentencing to pre‑trial and pre‑sentence custody and to increase the transparency of sentencing decisions. (See: para. 2, R. v. Summers, 2013 ONCA 147 (CanLII), 297 C.C.C. (3d) 166). [137] am satisfied that ss. 515(9.1) to 524(4) or 524(8) are not applicable to Thomas Matychuk. [138] Section 719(3.1), which provides that if the circumstances justify it, an offender may receive one and one-half days credit for pre-trial custody, has been the subject of some conflicting decisions across the country. These include the decision of the Ontario Court of Appeal in R. v. Summers, 2013 ONCA 147 (CanLII), 114 O.R. (3d) 641; R. v. Carvery, 2012 NSCA 107 (CanLII), 321 N.S.R. (2d) 321 (leave to appeal to the Supreme Court of Canada granted on April 11, 2013); R. v. Bradbury, 2013 BCCA 280 (CanLII), 298 C.C.C. (3d) 31; R. v. Stonefish, 2012 MBCA 116 (CanLII), 288 Man.R. (2d) 103. The issue in those cases was whether s. 719(3.1) contemplates that only exceptional circumstances can justify enhanced credit and that remand offender’s loss of remission and parole eligibility during pre-sentence custody does not qualify as an exceptional circumstance within the meaning of s. 719(3.1). As noted by Justice Gunn in the Taniskishayinew case, s. 719(3.1) is silent as to the situation that will justify enhanced credit for pre-sentence custody. We will, within the near future, have the benefit of the Supreme Court of Canada decision on appeal from the Nova Scotia Court of Appeal in R. v. Carvery, supra. There are no decisions to my knowledge on this issue by the Saskatchewan Court of Appeal. [139] agree with the decisions taken by the Ontario Court of Appeal, Manitoba Court of Appeal and Nova Scotia Court of Appeal on the issue and conclude that s. 719(3.1) does not preclude sentencing court from considering loss of remission and eligibility for parole as circumstance which might be taken into consideration by the court in determining what credit to be applied for pre-sentence custody to maximum of one and one-half days for each day spent in custody. [140] The task before me then is to assess the information provided to determine whether Thomas Matychuk is entitled to any enhanced credit. [141] Thomas Matychuk bears the onus of proof of seeking to depart from the established practice of 1:1 credit. Thomas Matychuk must demonstrate by credible information or evidence that enhanced credit ought to be applied in his case. [142] have received some information setting out the general conditions of Thomas Matychuk’s pre-trial incarceration. The only evidence on this issue was that Thomas Matychuk took programming while on remand. It does appear that some was available and he took advantage of what was there. It does not appear that this matter was delayed unduly in proceeding to trial or that the Crown was responsible for any of the delay. That is the only evidence before me. [143] On the whole, am not satisfied that there are circumstances here, on the information before me, that justify any credit for time spent in custody beyond one day for each day spent in custody. There is nothing in the circumstances here which satisfy me such increased credit should be given. [144] Thomas Matychuk was arrested on this charge on July 17, 2012 so am prepared to give him credit of 19 months and two weeks. [145] The sentence I am imposing with respect to Thomas Matychuk is 12 years of imprisonment for breaking and entering F.J.’s house and committing therein the offence of aggravated sexual assault. I give Thomas Matychuk credit of 19 months and two weeks for the time spent in custody. Therefore, the sentence to be served is 10 years and four and one-half months in the penitentiary. sentence Thomas Matychuk to sentence of 10 years and four and one-half months in penitentiary. ANCILLARY ORDERS [146] The Crown has asked that make an order under s. 490.012 of the Criminal Code requiring Calvin Klemenz and Thomas Matychuk to comply with the Sex Offender Information Registration Act, S.C. 2004, c.10. This section, including subsections 490.012(1) and (4), make it clear: if an offender is convicted of designated offence such as sexual assault contrary to s. 271(1), the sentencing judge “shall” make such order unless the offender “has established” to the satisfaction of the judge that the impact of such an order upon the offender would be grossly disproportionate to the public interest in protecting society. The burden is upon the offender seeking an exemption to establish that the impact of an order would be grossly disproportionate to the public interest in issue, and that in the absence of any evidence to that effect, the presumption of the section applies and the order will be made. In this instance, there was no such evidence and indeed neither Calvin Klemenz nor Thomas Matychuk sought an exemption. There will be an order under s. 490.012 requiring Calvin Klemenz and Thomas Matychuk each to comply with the Sex Offender Information Registration Act, for the duration of 20 years under s. 490.013(2)(b) of the Criminal Code. [147] The Crown has also sought an order pursuant to s. 487.051 for the taking of DNA samples. Pursuant to s. 487.051(2), the court shall make such an order unless the offender has established that the impact of such an order on their privacy and security would be grossly disproportionate to the public interest. Calvin Klemenz and Thomas Matychuk did not seek such an exemption. There will be an order pursuant to s. 487.051 authorizing the taking of the number of samples of bodily substances that is reasonably required for the purpose of forensic DNA from Calvin Klemenz and from Thomas Matychuk in accordance with the section. [148] There will also be an order pursuant to s. 109 of the Criminal Code prohibiting each of Calvin Klemenz and Thomas Matychuk from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for period of ten (10) years. C. L. DAWSON

Criminal Law – Home Invasion – Sentencing HELD: The Court sentenced Klemenz to 12 years imprisonment for breaking and entering and committing the offence of aggravated sexual assault. He was given credit for 22 months spent in custody. Matychuk was sentenced to 12 years in prison but was given credit for time in custody on a 1:1 basis because the Court had not found any circumstances to justify any greater amount of credit. Matychuk’s credit was for 19 months. The sentences were based on the circumstances of the offence: a home invasion and inflicting serious bodily harm on a young victim. The assault was violent and degrading and took place over a period of time. Weapons were used while the victim was bound and sexually assaulted and threatened.

9_2014skqb60.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2008 SKCA 172 Date: 20081223 Between: Docket: 1379 Curtis Conrad Bear and Her Majesty the Queen Coram: Cameron, Lane and Smith JJ.A. Counsel: Dhugal Whitbread for the Appellant William Campbell for the Crown Appeal: From: QBNJ 3/05, J.C. of Saskatoon Heard: October 28, 2008 Disposition: Appeal dismissed Written Reasons: December 23, 2008 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr. Justice Lane Smith J.A. [1] The appellant was tried by Queen’s Bench judge sitting alone and found guilty of operating a motor vehicle while his ability to operate the vehicle was impaired by alcohol, thereby causing the death of Tanya Bergen, contrary to s. 255(3) of the Criminal Code, and causing bodily harm to Helen McDermott, contrary to s. 255(2) of the Criminal Code. He was sentenced to five years imprisonment after having been given credit of one year for the time served on remand. The appellant appeals both his conviction and the sentence imposed. [2] On the conviction appeal the appellant raises technical ground in relation to the manner in which the appellant was charged as well as issues of the propriety and fairness of the cross-examination of himself by Crown counsel, the admissibility of his criminal record at trial, and the admissibility of opinion evidence provided in the testimony of the Crown’s expert witness on accident reconstruction. He also argues that the trial judge failed to find that the fact that the appellant was impaired at the time of the collision was the cause of the collision and that his conclusion was unreasonable and against the weight of the evidence. The Conviction Appeal [3] The charges arise out of collision in the early morning hours of July 27, 2003, between truck owned by the appellant and car driven by Tanya Bergen. By agreed statement of facts, it was agreed that both the appellant and Ms McDermott were occupants of the truck, that the collision caused the death of Ms Bergen, and that the appellant’s ability to drive the vehicle was impaired at the time of the accident. Further, the evidence puts beyond any doubt that the truck ran stop sign at the intersection at which the collision occurred and that it had been travelling at an excessive rate of speed immediately prior to entering the intersection. Accordingly, the sole issue at trial was whether it was the appellant or Ms McDermott who was the driver of the truck at the time the collision occurred. Background Facts and Evidence [4] By way of background, number of facts are undisputed. Both the appellant and Ms McDermott had been consuming alcohol for number of hours prior to the collision. They were acquaintances and had met in bar in Saskatoon around 7:00 p.m. on July 26. When the bar closed, the two travelled by taxi to the appellant’s residence, where his mother was looking after his sleeping six year old son. Around 3:00 a.m. the two left the appellant’s residence in the truck to go to Ms McDermott’s residence. They stopped on the way at the home of the appellant’s sister (located only few blocks from the site of the collision) to obtain some money to purchase more beer. However, the sister did not answer the door, and the two proceeded, in the truck, in the direction of Ms McDermott’s home. [5] When the collision occurred, the truck, occupied by the appellant and Ms McDermott, rolled completely over, landing on its wheels. When the first witnesses arrived at the scene, Ms McDermott was lying unconscious on the ground outside the passenger side of the vehicle. The appellant was standing outside the truck. [6] The Crown called 10 witnesses. The appellant testified on his own behalf and the defence also called his mother and his sister as witnesses on the question of who was driving the truck. [7] significant witness for the Crown was Constable Malcolm Gibson who was called to give expert opinion evidence in relation to the collision itself and also in relation to the location of the two occupants in the truck at the time of the collision. The appellant challenges the admissibility of much of this evidence and will return to this issue below. [8] The remaining witnesses were, essentially, eye witnesses, either of the events preceding the collision, or of facts and circumstances following the collision. brief summary of this evidence is necessary to put into context the grounds of appeal. [9] Ms McDermott, former sessional lecturer at the University of Saskatchewan in Cree, testified that she was passenger in the truck and that the appellant was the driver. On her version of the events leading up to the collision, she agreed that she had met the appellant earlier in bar and that they had been drinking together. Ms McDermott had taken taxi to the bar in the first instance. Sometime during the evening, she left the bar and then returned, again in taxi. When she and the appellant decided to go to his residence, on the closing of the bar, they again took taxi. [10] On Ms McDermott’s version of the events, she fell asleep on the couch in the appellant’s home. When she awoke, around 2:30 to 3:00 a.m., she wanted to go home and was going to telephone taxi. However, the appellant insisted that he would drive her home. She said that she was concerned about the appellant’s ability to drive. However, she did accompany the appellant, as passenger in the truck. [11] She testified that when the collision occurred, she put her arms up to protect herself, and remembers her head being hit. She had cuts to her wrist, arms, head and face and bruises on other parts of her body, including her knees. One cut, large cut on her right arm near the elbow, required 14 stitches to close. [12] The appellant is logging contractor. He agreed with Ms McDermott’s account of the earlier part of the evening which eventually led to their going to his residence when the bar closed. However, in contrast to Ms McDermott’s evidence, he testified that, once he and Ms McDermott were back at his residence, they decided to get some more alcohol for the rest of the evening. He suggested they try to borrow some money from his sister, as neither had any money. He testified that Ms McDermott was going to drive because he did not have licence and he relied on his vehicles for work—they were his livelihood. He said he had not driven vehicle in years. He testified that neither of them had money to pay taxi. When his sister did not answer the door, he testified that Ms McDermott then suggested they go to her place because she had beer in her fridge. He insisted that Ms McDermott was at all times the driver of the vehicle. [13] The appellant’s mother testified for the defence. She is child protection worker with the Department of Community Resources and Employment. The truck involved in the collision was owned by this witness. She said that she recalled the appellant and Ms McDermott coming to the residence at about 2:30 a.m. They remained at the home about half an hour. She thought Ms McDermott appeared sober. She testified that, when the appellant and Ms McDermott left, she went to the window and saw Ms McDermott getting into the driver’s side of the vehicle, and the appellant getting into the passenger’s side. On cross-examination she was asked whether she had given the keys to the truck to Ms McDermott. She testified that Ms McDermott was sitting by the table in the kitchen and that she wanted to go somewhere. Ms McDermott had the keys in her hand, and said, “Let’s go.” The witness said that she had said, “I don’t think so”, and that Ms McDermott assured her that she was sober. According to the testimony of this witness, Ms McDermott went outside first, and got into the driver’s seat. [14] The appellant’s sister is university student. She testified that she heard someone at her door at around 3:00 a.m. Se got up and looked out the window and saw that it was the appellant. She did not answer the door. She saw the appellant leave and testified that he got into the passenger side of the truck. [15] Crown witness Magdalene Hunt lived in the same neighbourhood as the appellant’s sister. She testified that just after 3:00 a.m. she had finished work and was walking her dogs in the neighbourhood. Her attention was drawn to the truck because of the noise it made. (The appellant confirmed on cross-examination that the truck was very loud.) She saw the truck pass by and saw the silhouette of the truck’s driver. She testified that the driver appeared to be large male with shoulder length hair. It is clear that this description fit the appellant and did not fit Ms McDermott, who is petite. She heard the noise of the collision and went to the scene where she saw Ms McDermott lying on the ground beside the truck, the deceased in the car and the appellant outside the truck, walking around aimlessly, staggering and muttering. [16] Anna Scappaticci also heard the collision and went to the scene. She also saw the appellant walking around, apparently incoherent and mumbling. She testified that the driver’s side window was down. [17] Jason Trask was paramedic who arrived when the police called for medical assistance. He testified that the appellant complained of shoulder injury as well as abdominal, pelvic, arm, back and shoulder pain. He noted bruises and abrasions to the appellant’s right chest area and minor abrasions to his knees. Mr. Trask asked the appellant what caused the accident and the appellant responded that he was looking for his sunglasses at the time. [18] Several police officers who attended at the scene testified, as well as other paramedical personnel who attended the scene. These individuals also testified to the apparent injuries to the appellant. Constable Pfeil noted small red mark on the right side of the appellant’s chest. The officers reported the appellant to have been combative, aggressive, swearing, refusing to answer questions and threatening to sue. On Constable Hudec’s arrival at the scene, the appellant pointed to Ms McDermott lying on the ground and said that she was driving. The appellant’s blood alcohol level at the time of the collision was admitted to be 267 milligrams in 100 millilitres of blood. Discussion and Analysis Alleged improper cross-examination of the appellant. [19] The appellant raises two complaints in relation to his cross-examination. The first is that the trial judge allowed him to be cross-examined on all of his criminal record even though some of his prior convictions were not relevant to the issue of credibility and admission of that part of the record was therefore more prejudicial than probative. The appellant relies on the decision of the Supreme Court of Canada in R. v. Corbett, 1988 CanLII 80 (SCC), [1988] S.C.R. 670. [20] The complaint stems from cross-examination in relation to these convictions: conviction in 1993 of driving over .08 and failing to stop at the scene of an accident; conviction in 1995 of driving while disqualified; conviction in 1998 of care or control over .08; and conviction in 1998 of driving while disqualified. However, significantly, the question of the existence of his criminal record, including what might appear to be convictions similar to those with which he was charged, was introduced by counsel for the defence during the appellant’s examination-in-chief. When the Crown entered into cross-examination on the details of that aspect of the appellant’s record, no objection was raised by the defence. At no time did the defence make an application to exclude portions of his record on the basis of the Corbett decision, on the grounds that their admission was more prejudicial than probative. This passage occurs in the examination-in-chief of Mr. Bear: Okay. Now, it’s my understanding you have substantial record? Yes, do. And that record, was it alcohol-related, primarily? Yes. Do you have an alcohol problem now? No, don’t. [Trial transcript, p. 250, ll. 1-7] [21] Thus, it is clear that the existence of an alcohol related record was raised by the appellant’s own counsel and that the extent to which he had an “alcohol problem” was put in issue. [22] Although the trial judge clearly has discretion, pursuant to Corbett, to exclude prejudicial evidence of prior convictions in an appropriate case, this discretion is exercised by the trial judge on the application of an accused at the close of the Crown’s case. See R. v. Underwood, 1998 CanLII 839 (SCC), [1998] S.C.R. 77. As such an application was not raised in this case, the questioning about previous criminal convictions by the Crown was not objected to when it occurred, and the issue of the appellant’s previous alcohol related offences was raised in the appellant’s own examination-in-chief, it is my conclusion that there is no basis for this Court to conclude that that cross-examination was inappropriate or that the evidence adduced was inadmissible. [23] The second aspect of the appellant’s cross-examination at trial that is raised on the appeal is the fact that on several occasions Crown counsel called on the accused to “explain” the evidence of certain of the Crown’s witnesses that was inconsistent with the evidence of the appellant and he was asked whether it was his evidence that these witnesses were “lying”. In particular, these passages in the cross-examination of the appellant are at issue: but Mr. Bear, Ms. McDermott is First Nations? Sure she is. So she’s why is she lying about you then? Well, I’ll tell you. think Ms. McDermott is lying because she doesn’t she doesn’t want to be in trouble and probably you know, she she wants to avoid the whole situation. Why did Ms. McDermott flee from the hospital before the police had chance to talk to her then, and [Transcript p. 315, ll. 10-18] Okay. Okay. So Helen McDermott is lying? Yes, she is. And Maggie Hunt is mistaken or lying? Maggie Hunt, believe, is mistaken. Okay. And the expert is completely mistaken in placing you behind the driver’s wheel? No comment on that. mean, I’m not an expert. [Transcript p. 321, l. 22 p. 322, line 2] So Mr. Trask is lying? Well, he might have I’m not saying he’s lying. don’t like to say people are lying, apart from Helen Right. but mean, don’t like to So he’s mistake? throw insults around like that. So Jason Trask is mistaken? You’re saying I’d say it’s strong possibility. [Transcript p. 322, l. 25 p. 323, l. 7] [24] agree with the appellant that these questions were improper. Many cases have held that it is improper for Crown counsel to ask an accused on cross-examination to explain the testimony of Crown witness, and that it is highly unfair and prejudicial to require an accused to agree with Crown witness or stigmatize that witness as “liar”. Requiring an accused to explain inconsistencies between his testimony and that of Crown witness is said to offend the presumption of innocence. It also unfairly requires the accused to argue his case in the context of his testimony, rather than leaving that argument to counsel, at the close of the case. Requiring the accused to agree with Crown witness or stigmatize that witness as liar is clearly prejudicial, and is unfairly designed to create an unfavourable impression of the accused. Finally, comment by one witness on the veracity of another is irrelevant. See R. v. Rose (2001), 2001 CanLII 24079 (ON CA), 153 C.C.C. (3d) 225 (Ont. C.A.); R. v. Cole, [1999] O.J. 1647 (Ont. C.A.) R. v. F.(A) (1999), 1996 CanLII 10222 (ON CA), 30 O.R. (3d) 470 (C.A.); R. v. Masse (2000), 2000 CanLII 5755 (ON CA), 134 O.A.C. 79 (C.A.); R. v. Vandenberghe (1995), 1995 CanLII 1439 (ON CA), 96 C.C.C. (3d) 371 (Ont. C.A.); R. v. Brown (1982), 1982 ABCA 292 (CanLII), C.C.C. (3d) 107 (Alta. C.A.); R. v. Ellard, 2003 BCCA 68 (CanLII), 10 C.R. (6th) 189; and R. v. Boyd, 2005 MBCA 80 (CanLII), 199 C.C.C. (3d) 185. [25] In my respectful view, Crown counsel should not have put these questions and the trial judge ought not to have permitted them. note that defence counsel did not object to these questions. [26] Nonetheless, for an appeal to succeed on this ground, this Court must conclude that the appellant was, in the context, prejudiced by the questions. See Boyd, supra. We note that this was not jury trial, unlike most of the cases cited above. Nor did the trial judge himself appear to place any weight on these questions or in any way shift the onus of proof to the accused, as in Vandenberghe, supra. Finally, in the context of the entire cross-examination, these questions and the appellant’s responses were, in my view, relatively innocuous, and did not play major role in the evidence of the appellant. See R. v. E.(T.), 2007 ONCA 891 (CanLII). [27] In all of the circumstances of this case I am not satisfied that this error had any effect on the trial. This ground of appeal must therefore fail. Admissibility and Use of Expert Opinion Evidence of Cst. Gibson [28] In my view, the appellant raises number of valid objections to the evidence received from Constable Gibson. He was permitted, over the objection of defence counsel, to give opinion evidence on issues for which his qualifications as an expert witness had not been established, viz., the manner in which the bodies of the occupants would have moved within the vehicle during the course of the collision and its aftermath. He was allowed to draw conclusions based on evidence not before the court and, on this basis, again over the objection of defence counsel, to offer an opinion on the very issue the Court was required in this case, to determine, viz., who was in the driver’s seat at the time the collision occurred. [29] The key issue that this Court must determine is whether these errors might have affected the verdict reached by the trial judge in this case. [30] After Constable Gibson was sworn as witness, Crown counsel indicated to the Court that he was tendering this witness as an expert in the area of collision reconstruction. The trial judge asked defence counsel whether the witness’s qualifications were in issue. Counsel responded as follows: MR. BODNAR: Well, it depends how far they go. If they’re intending to go so far as to do reconstruction of the accident and how the vehicles collided and what happened and the speed of the vehicles, fine, but if the police officer is going to be giving his opinion about other matters inside the vehicle, the position of who where people were, in other words usurping the purpose of the court, don’t agree with that area. So think that his expertise is limited to the reconstruction of the accident, not of the positioning of the people in the vehicle, based on the statements he has read, based on information he was given. That’s for the court to decide. [Transcript p. 145, ll. 13-25] [31] While this response might have been more clearly stated, it is reasonably read as conceding that this witness could offer opinion evidence in relation to how the collision occurred, but objecting to his giving opinion evidence on the question of where the occupants of the truck were sitting at the time of the collision, on three bases: (1) lack of expertise, clearly not conceded in relation to this issue; (2) that the opinion to be offered was based on hearsay (“statements he has read, based on information he was given”); and (3) that to permit him to offer an opinion on this issue would usurp the role of the trial judge, offering conclusion on the issue that was for the court to decide. [32] Although Crown counsel indicated, in response, that he did, indeed, intend to elicit from this witness his opinion as to where the occupants of the truck were sitting at the time of the collision, no evidence was at any time offered as to his expertise to do so, other than his curriculum vitae, which was filed. An examination of the CV is, in my view, unhelpful on this point, in that it consists simply of list of number of courses taken by Constable Gibson in the area of “accident reconstruction” and list of the times that he had been qualified to give expert opinion evidence in relation to “accident reconstruction” in court. In particular, there is no indication of the content of any of these courses. [33] Having made his initial objection, defence counsel did not cross-examine the witness on his qualifications. Rather, this exchange occurred: THE COURT: Well, let’s hear his qualifications then. MR. KLAUSE: Okay, sure. THE COURT: Yes, and then we’ll deal with it as we can. MR. KLAUSE: Okay. THE COURT: Yes. MR. BODNAR: Unless the good thing of not having jury is that there are things that may be said that may not be admissible and Your Lordship can disregard them THE COURT: Well, that’s MR. BODNAR: and if you wish THE COURT: always MR. BODNAR: to proceed that way, then that’s fine. THE COURT: That’s think that’s the way MR. KLAUSE: think that’s THE COURT: usually prefer to proceed. MR. BODNAR: Sure. Well, I’m not going to object to this witness being sworn as an expert in reconstruction. THE COURT: In accident reconstruction. MR. BODNAR: It’s question of how far you let him go. THE COURT: Yes. Okay. MR. KLAUSE: So we’ll just file his C.V. then with Your Lordship, or do you still THE COURT: File the C.V. and then we’ll MR. KLAUSE: Proceed? THE COURT: Yes. [Transcript p. 144, l. 12 p. 145, l. 17] [34] Constable Gibson was then questioned at length as to his opinion in relation to which of Mr. Bear or Ms McDermott was the passenger and which the driver. Defence counsel objected during the examination to this line of questioning only once, recorded in the following passage, which follows fairly extensive testimony from Constable Gibson of his observations of the damage to the interior of the truck cab and his opinion as to how this damage might have been caused by the movement of the occupants: THE WITNESS: Okay. We now go to what we know of the occupants of of the motor vehicle. If we go to the Helen McDermott first, at that particular point. Helen McDermott provides statement to Constable Keen. She allows Constable Keen to take some photographs of of her and the related injuries. From the photographs she has damage to her or injuries noted to her right arm, and she also has injuries to her the right side of her head at that particular point. She outlines set of facts to Constable Keen. Those facts become consistent with the accident. The facts MR. BODNAR: Well, object, My Lord. He is not finder of fact. We don’t have the statement before us, and Ms. McDrmott is not here for cross-examination on that. That’s just completely improper to get into this particular manner of trying to reconstruct referring to statement that’s not before the court, and suggest that this witness cannot do it. He is trying to usurp your function. MR. KLAUSE: My position is that witness testified, My Lord, and you’ll recall that she testified that she had lacerations on her arm, on the underside. Constable Pfeil noticed those THE COURT: Well, I’ve got her evidence as to what MR. KLAUSE: Right. THE COURT: she said. MR. KLAUSE: Right. It’s before the court, so just referring to her statement and the photographs he observed of her lacerations. So think it’s MR. BODNAR: But THE COURT: Well, he did observe photographs. MR. BODNAR: But trying to tell us that her evidence or her statement is consistent with what’s in this truck is completely improper. THE COURT: Well, he isn’t saying that she said she was sitting in the passenger side. He’s saying, as understand it, Mr. Bodnar, he’s saying what she said her injuries were. We had her on the witness stand. She was cross-examined by you as to what injuries she sustained. MR. BODNAR: don’t believe that we’re referring to the injuries here, and what this constable is referring to is the injuries. And THE COURT: Well, if he’s referring to the injuries MR. BODNAR: Well, that’s THE COURT: have no problem with that. MR. BODNAR: That’s fine. My objection is in, and Your Lordship can reserve on this and deal with it later, if necessary. Thank you. [Transcript p. 196, l. p. 198, l. 8] [35] This objection, in my view, was well taken and ought to have been sustained. It is clear that the opinion of this expert was influenced, at least in part, by reading statement taken from Ms McDermott at the scene of the accident. This statement was not before the Court and, in any case, should not have been relied upon by this witness to determine where the passengers in the truck were sitting. It was not for him to evaluate the evidence of Ms McDermott and draw conclusions from it. In fact, the transcript makes it clear that Constable Gibson read the reports of the police officers and the ambulance attendants who attended at the scene of the collision, examined photographs of Ms McDermott’s injuries, and read Mr. Bear’s medical records before coming to his conclusions. [36] In my view, this witness’s evidence as to how the bodies might have moved within the vehicle in the course of the collision and its aftermath, and, in particular, his conclusory opinion that Ms McDermott was the passenger and Mr. Bear the driver, ought not to have been received in the absence of ruling that he was qualified as an expert in relation to these matters, that his expertise was necessary in relation to the subject matter of his testimony, and that his opinion was based on facts before the Court. [37] This conclusion raises the question of whether, notwithstanding this error, this Court should conclude that no substantial wrong or miscarriage of justice has occurred, pursuant to s. 686(1)(b)(iii) of the Criminal Code, which will address below. Convicting the Appellant in the absence of charge pursuant to s. 253(a) of the Criminal Code [38] The appellant was charged and convicted with offences pursuant to s. 255(2) and s. 255(3) of the Criminal Code. These provisions read as follows: 255(2) Every one who commits an offence under paragraph 253(a) and thereby causes bodily harm to any other person is guilty of an indictable offence and liable to imprisonment for term not exceeding ten years. (3) Every one who commits an offence under paragraph 253(a) and thereby causes the death of any other person is guilty of an indictable offence and liable to imprisonment for life. [39] The appellant points out that these are really the punishment provisions and argues that conviction requires that the appellant has been charged with an offence pursuant to s. 253(a) (impaired driving). [40] I find no merit in this ground of appeal. Impaired driving causing death and bodily harm are routinely charged in this manner. Even if this is technical error, which doubt, no objection was taken to it at trial and, more to the point, the indictment is unambiguous and it is abundantly clear that the appellant was made fully aware of the precise offence with which he was charged and the case he had to meet. Failure of the trial judge to make an express finding that the impairment of the driver of the truck caused the collision [41] The agreed statement of facts filed by the parties at the trial contained an admission that the appellant was impaired at the time of the collision and that the collision caused the death of Ms Bergen. In fact, it is admitted that at the time of the accident the blood alcohol content of the appellant was 267 milligrams of alcohol in 100 milliliters of blood, more than three times the legal limit. The evidence was overwhelming that the injuries to Ms McDermott were also caused by the collision. In oral argument, counsel for the defence indicated to the trial judge that the only issue to be determined at the trial was whether the Crown had proven beyond reasonable doubt that the appellant was the driver of the truck. [42] There was evidence before the trial judge that the truck was going at very high speed for city street when it entered the intersection, and that the driver ran stop sign. Causation is established in relation to these offences if the trial judge is satisfied beyond reasonable doubt that the impairment of the driver was at least contributing cause of the collision outside the de minimis range as the test in R. v. Smithers, 1977 CanLII (SCC), [1978] S.C.R. 506 has been held to apply to these offences. See R. v. Halkett (1988), 1988 CanLII 4877 (SK CA), 73 Sask. R. 241 (C.A.). It is my respectful view that causation was so readily established on the evidence that mention of it was not necessary in this context. It was essentially admitted in the submissions of defence counsel. No substantial wrong or miscarriage of justice? [43] Having found that the trial judge erred in accepting some of the expert opinion evidence offered by Constable Gibson, turn to the question of whether, notwithstanding this error, the appeal should be dismissed on the basis that no substantial wrong or miscarriage of justice has resulted, as provided in s. 686(1)(b)(iii) of the Criminal Code. [44] The Crown points out that much of the testimony of Constable Gibson was purely descriptive—in effect, an eye witness account of his observations at the scene of the collision. He also took number of samples from the vehicle that were subsequently submitted for DNA analysis. The result of the analysis was admitted without objection. In addition, he gave evidence in relation to his acknowledged expertise in relation to the speed of the vehicles as they entered the intersection and at the time of the collision, and the movement of the vehicles following the collision. In this respect, of particular note was the following evidence: (1) Inspection of the seatbelts revealed no “loading”, indicating that neither the passenger nor the driver of the truck was wearing seatbelt at the time of the collision. (2) The speed of the truck as it entered the intersection was opined to be between 91 and 99 kilometers per hour; that of the car, 25-59 kilometers per hour. (3) On the windshield of the truck, on the passenger side, there were two concentric areas, pushed out. In these areas was what appeared to be hair and flecks of blood. Samples were taken and analyzed. DNA analysis matched that of Ms McDermott. (4) DNA analysis of hair caught between the doorframe and the weather strip on the passenger side matched that of Ms McDermott. (5) DNA analysis of hair caught in screw above the windshield on the passenger side matched that of Ms McDermott. [45] The trial judge indicated that the issue before him was whether the Crown had proven, beyond reasonable doubt, that the appellant was driving the truck at the time of the collision. He recognized the conflict in the evidence between the appellant and Ms McDermott. He found Ms McDermott to be candid and credible. He found the testimony of the appellant to be fraught with inconsistencies. Particularly on cross-examination, the appellant appeared to be making the story up as he went along. The trial judge gave examples of this. He did not believe the testimony of the appellant’s mother and sister, and concluded that it was fabricated. He found that Ms Hunt was credible witness and that her evidence indicated that the appellant was in the driver’s seat. He also accepted the evidence of Mr. Trask, that the accused, when asked what caused the accident, replied that he was looking for his sunglasses. He concluded it was highly unlikely that he would have responded in this manner if he were only the passenger. He then went on: THE COURT: However, the most compelling evidence as to who was driving the truck, was Constable Gibson. found him to be very credible witness. He conducted thorough investigation of the truck and noted certain damage. He then related the evidence of the damage to the interior of the truck to the injuries suffered by the two occupants. accept his evidence that with the initial braking, the occupants would be thrust forward, and that when the collision occurred there would be slight shift movement to the right. The injuries to Ms. McDermott were consistent with the obvious impact to the passenger side window, the glove compartment and the pillar on the passenger side. His conclusions were supported by the DNA testing done on the hairs and flecks of blood which turned out to belong to Ms. McDermott. The black hairs on the outside of the passenger door, that could not be identified, do not cause me to doubt his evidence. Ms. McDermott obviously had very dark hair. At the time she said she had streaked her hair, but that did not mean that she had totally dyed it to lighter colour. The injuries to the accused were consistent with his being in the driver’s seat and hitting the steering wheel and some levers on the lower left-hand side. The accused attempted to explain away the red mark on his chest by suggesting that he was handcuffed and punched by the police. Notably he didn’t say which officer punched him. Apparently this beating and the uttering of racial slurs occurred when there were number of lay witnesses at the accident scene. accept the evidence of Constable Hudec that the accused was not handcuffed. Constable Hudec was not cross-examined as to any alleged punching of the accused. totally reject the suggestion that the accused was subjected to police brutality. His explanation as to why he would not have laid complaint if such conduct occurred was frankly pathetic. find, as fact, that Ms. McDermott exited the truck through the passenger side window. It would have been impossible for that to have happened if the accused was sitting in the passenger seat. When weigh and consider all the evidence, am satisfied beyond reasonable doubt that the accused was driving the truck when it collided with the car being driven by Ms. Bergen. [Transcript p. 372, l. 23 p. 374, l. 16] [46] While this passage makes it clear that the trial judge placed considerable reliance on the testimony of Constable Gibson, it is clear that this related, in very large part, to his description of the damage to the vehicle and his evidence in relation to the DNA samples taken. The admissibility of this evidence was not challenged. [47] Without going into detail, my review of the cross-examination of the appellant supports the trial judge’s assessment of it as unbelievable. [48] It is my respectful view that in light of the trial judge’s findings of credibility, and the results of the DNA analysis of the samples taken, the evidence overwhelmingly supports the verdict reached by the trial judge. It is my view that the conclusory opinions expressed by Constable Gibson in relation to the movements of the occupants in the truck, and as to who was driving the vehicle, played no meaningful role in conclusion that was, in any case, compelled by the remaining evidence. [49] These points also address the final ground of appeal: that the verdict was unreasonable and not supported by the evidence. The appellant’s primary concern is the rejection of the trial judge of the testimony of the appellant’s sister and mother. This is clearly finding of credibility and is within the province of the trial judge. find no basis to interfere with his finding in this regard. [50] Accordingly, I would conclude that notwithstanding the errors apparent in the receipt of opinion evidence from Constable Gibson, there was no substantial miscarriage of justice in this case. I would dismiss the appeal from conviction. Sentence Appeal [51] The trial judge determined that an effective sentence in this case would be term of imprisonment of six years. After giving the appellant credit of one year for approximately six and one-half months spent on remand, he imposed term of five years in prison. He also imposed lifetime driving prohibition and made DNA order. [52] The appellant argues that this sentence falls outside the range of sentences set by this Court in number of previous cases. [53] At the time of this offence the appellant was 31 years old (date of birth:5 November 1972). He has two children, young son born of marriage in 2005 and nine year old son of previous relationship whom he raised as single parent until the child was three and one-half years old, and of whom he now has joint custody. He operates business that does tree trimming and removal, some landscaping and hauling and has firewood contracts with several local businesses and is said by his character witnesses to be hard worker, caring father and good employer. He has taken one year welding course and one year mechanics course. He also took three years of Social Work at SIFC (now First Nations University of Canada), but did not finish it as he stayed at home to raise his eldest son. [54] The appellant has criminal record, beginning when he was 19 years old, in 1991. It includes convictions for theft under $1,000 (1991), use of credit card obtained by crime (1991), assault, break, enter and theft and uttering threats (1994), and substantial number of convictions for failure to comply with terms of recognizance and failure to attend court. Directly related to this offence are three previous convictions for driving with more than 80 mgs. of alcohol in his blood (1991, 1993 and 1998) and two previous convictions for driving while disqualified (1995 and 1998). In relation to the 1993 offence he was also charged with failing to stop at the scene of an accident. In his pre-sentence report he was rated as high risk to reoffend, based primarily on his record of numerous failure to comply offences and his alcohol abuse. He has continued to maintain that he was wrongfully convicted for the within offence. [55] The trial judge emphasized the appellant’s previous criminal record and, in particular, the three previous drinking and driving offences. He noted that in 2001 Parliament had amended s. 255(3) of the Criminal Code to increase the maximum sentence available from 14 years to life imprisonment, indicating an intention that this offence should be dealt with severely. He considered the evidence of the manner of driving in this case—the speed involved and failure to stop at stop sign, and the degree of impairment of the appellant and concluded that the appropriate range for this offence for this accused is between four and eight years. He indicated that in these circumstances the most important sentencing factors are to denounce drinking and driving and to deter the accused and others from committing such offences. He noted that the appellant had not accepted responsibility for this offence and, to the contrary, had attempted to shift the blame on Ms McDermott. [56] We are unable to conclude that the trial judge committed any error of principle in coming to his conclusion that an appropriate sentence in this case would be six years imprisonment. [57] The appellant argues that the sentence imposed was, however, outside the range of sentences imposed for similar offences. While I agree that the sentence imposed was at the high end of the available range, I am unable to conclude that it was outside the range available on the circumstances of this case. Many of the cases cited by the appellant predate the 2001 amendment to this section of the Code. Circumstances also vary widely in terms of the manner of driving, the degree of impairment, the previous criminal record in relation to alcohol related offences and whether, by way of mitigation, the accused has accepted responsibility and shown remorse. [58] In R. v. Regnier, 2002 SKCA 82 (CanLII), 219 Sask.R. 316, this Court considered Crown appeal from concurrent sentences of four years each in relation to charges of criminal negligence causing death and criminal negligence causing bodily harm. The respondent had previous record of five previous convictions for impaired driving in addition to other offences. At the time of the offence his blood alcohol level was two and one-half times over the legal limit. He was speeding and driving on the wrong side of the road and collided head on with vehicle driven and occupied by the victims. [59] This Court indicated that the appropriate range of sentences for such offences was between two and seven years imprisonment and increased the sentences imposed from four to six years, concurrent. [60] Although that case dealt with technically more serious offence, the circumstances of the two cases do not differ substantially. [61] Accordingly, am unable to conclude that the sentence imposed in this case was outside the appropriate range of sentences. The sentencing judge made no error of principle and the sentence was not demonstrably unfit. DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of December, A.D. 2008. “Smith J.A.” concur. “Cameron J.A.” CAMERON J.A. concur. “Lane J.A.”

The appellant was tried by Queen's Bench judge sitting alone and found guilty of operating a motor vehicle while his ability to operate the vehicle was impaired by alcohol, thereby causing death contrary to s. 255(3) of the Criminal Code, and causing bodily harm contrary to s. 255(2) of the Code. He was sentenced to 5 years imprisonment after having been given credit of 1 year for the time served on remand. The appellant appeals both his conviction and sentence. On the conviction appeal the appellant raises a technical ground in relation to the manner in which the appellant was charged as well as issues of the propriety and fairness of the cross-examination of himself by Crown counsel, the admissibility of his criminal record at trial, and the admissibility of opinion evidence proved in the testimony of the Crown's expert witness on accident reconstruction. He also argues that the trial judge failed to find that the fact that the appellant was impaired at the time of the collision was the cause of the collision and that his conclusion was unreasonable and against the weight of the evidence. HELD: Appeal dismissed. 1) The trial judge has a discretion pursuant to R. v. Corbett, [1988] 1 S.C.R. 670, to exclude prejudicial evidence of prior convictions in an appropriate case. This discretion is exercised by the trial judge on the application of an accused at the close of the Crown's case. See R. v. Underwood, [1998] 1 S.C.R. 77. As such an application was not raised in this case, and the questioning about previous convictions by the Crown was not objected to when it occurred, and the issue of the appellant's previous alcohol related offences was raised in the appellant's own examination in chief, this court concludes that there is no basis for this Court to conclude that the cross-examination was inappropriate or that the evidence adduced was inadmissible. 2) It is not proper for Crown counsel to ask an accused on cross-examination to explain the testimony of a Crown witness, and that it is highly unfair and prejudicial to require an accused to agree with a Crown witness or stigmatize that witness as a 'liar'. Crown counsel should not have put these sorts of questions and the trial judge ought not to have permitted them. Defence counsel did not object to them. However, this Court is not satisfied that this error had any effect on the trial and this ground of appeal fails. 3) The Crown elicited opinion evidence from Constable Gibson in the area of accident reconstruction. No evidence was at any time offered as to his expertise to do so, other than his curriculum vitae, which was filed. This witness's evidence as to how the bodies might have moved in the vehicle in the course of the collision and its aftermath, and in particular, his conclusory opinion that Ms. McDermott was the passenger and Mr. Bear the driver, ought not to have been received in the absence of a ruling that he was qualified as an expert in relation to those matters, and that his expertise was necessary in relation to the subject matter of his testimony, and that his opinion was based on facts before the Court. 4) The appellant was charged and convicted with offences pursuant to s. 255(2) and s. 255(3) of the Criminal Code. The appellant argues that conviction requires that the appellant has been charged with an offence pursuant to s. 253(a). There is no merit in this ground of appeal. Impaired driving causing death and bodily harm are routinely charged in this manner. 5) This Court's review of the cross-examination of the appellant supports the trial judge's assessment of it as unbelievable. In light of the trial judge's findings of credibility, and the results of the DNA analysis of the samples taken, the evidence overwhelmingly supports the verdict reached by the trial judge that the appellant was driving. The conclusory opinions expressed by Constable Gibson in relation to the movements of the occupants in the truck, and as to who was driving the vehicle, played no meaningful role in a conclusion that was, compelled by the remaining evidence. Notwithstanding the errors apparent in the receipt of opinion evidence from Constable Gibson, there was no substantial miscarriage of justice. The appeal from conviction is dismissed. 6) The trial judge did not commit any error of principle in coming to the conclusion that an appropriate sentence was 6 years imprisonment. While the sentence is at the high end of the available range, it is not outside the range available in the circumstances of this case.

2_2008skca172.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 079 Date: May 4, 2012 Information: 44303324 Location: Saskatoon Between: Her Majesty the Queen and Jamie Robert Keil Appearing: Ms. Rock For the Crown Mr. Roe For the Accused JUDGMENT B.M. SINGER, [1] In this case evidence was led on the trial proper and on voir dire pursuant to an application under s. 24(2) of the Charter to exclude evidence allegedly because of breach of the Accused’s rights under the Charter. The primary defence of the Accused is one of identity. will deal with that first. [2] have had an opportunity to review the transcript of evidence and the argument of counsel and would like to thank both counsel for your informative and helpful briefs. have also reviewed all of the evidence in order to determine whether the Crown has proven, beyond reasonable doubt whether the Accused was the operator of the motor vehicle at the requisite time. will briefly summarise the facts that have found and the reasons for finding those facts. [3] The police got involved with the Accused as result of complaint of Ms. Anna Krakowetz. She lives at […] Road, in Saskatoon, in the third house to the east of the corner of […] Road and Avenue H. The Accused lived next door, in the second house in from Avenue H. At about 11:00 at night Ms. Krakowetz heard the sound of car engine revving and several loud noises outside her window. She looked out to see her neighbour’s car, “banging” and “smashing” into her car, by backing into it. She assumed the driver of the car was the Accused as she was sure the vehicle was his. She did not see the face of the driver. She then went outside and the vehicle left, again she only saw the back of the driver’s head and assumed, but could not be sure, it was the Accused. [4] The car then sped off east on […] Road. While there was some confusion in her recollection, as to where she was, she then says she saw the vehicle return to the front of her house and again speed off. Worried that it might come back again, she moved her vehicle to her back yard area so that it would not be subject to any further damage. [5] She then called the police. [6] Ms. Krakowetz and the Accused have history. In the past she had made complaints to the police about him playing loud music and being intoxicated. They did not have neighbourly relationship. [7] She may have exaggerated her complaints of the driving of his vehicle. Several times she referred to that vehicle repeatedly smashing or banging into her car. However, when the police later examined her vehicle, and the car of the Accused, surprisingly, there was no damage to either. Unfortunately this raises questions about her evidence as whole. [8] After the police arrived, they wished to examine her car, so she drove it from its location in the back around to the front of the house. She drove from the alley up Avenue and before turning east on […] Road she saw her neighbour’s car parked on Avenue H. [9] Prior to retrieving her car, while talking to the police, she observed the Accused walking, apparently from the direction of Avenue H. She testified that he was walking on the street from the corner of […] Road and Avenue H. have noted that later Cst. Johnstone testified that the Accused was walking down the fronts of the lawns and Constable Lambe who saw Johnstone and the Accused together places them basically on Mr. Keil’s own lawn at that time. Ms. Krakowetz told the police officer that he was the driver of the vehicle and the policeman asked him to stop. Mr. Keil was obviously intoxicated and when the Accused did not stop, the police officer grabbed on to him. The Accused apparently fell to the ground and the officer detained him. Another police officer took control of the Accused and it is of some note that the Accused at that time was described as: “Not so much belligerent at that point, but didn’t really believe that he had done anything […]Road, didn’t believe we really had reasons to deal with him.” [10] The officers handcuffed Mr. Keil and searched him, retrieving a fob that operates the locks on the doors of a vehicle and some keys from the Accused’s pocket. Later the police also located his vehicle on Avenue where the witness Krakowetz had seen it. The engine hood was warm and the car made sounds like it had recently been operated. The fob activated the door locks on the car, but no one apparently ascertained whether the keys in the possession of the Accused were for the vehicle. [11] The evidence of identity of Mr. Keil as the driver of the vehicle led through the eyewitness, Ms. Krakowetz, does not satisfy me beyond reasonable doubt that the Accused was the operator of the vehicle she observed “banging” into her car. She could not really identify the driver of the vehicle and assumed it was her neighbour. The first time she could positively identify the Accused to the police was when he was walking on or near his own lawn, apparently, from the direction of Avenue H, place where the police had recently driven and not seen the Accused. [12] Has the Crown proven circumstantially that the Accused was operating that vehicle? Circumstantial evidence is evidence, which if accepted, must be consistent with the guilt of the Accused and inconsistent with any other rationale explanation. [13] Evidence that supports the position of the Crown is as follows: a. The vehicle described by the witness was her neighbour’s vehicle. b. That vehicle was parked in the vicinity. c. It had been recently operated. d. He had fob that was associated with that vehicle in his pocket. e. He was spotted, on his lawn, short way from that vehicle, albeit sometime after the alleged operation of the vehicle. [14] Evidence that does not support the Crown’s position: a. The eyewitness was antagonistic to the Accused and his drinking; she described deliberate and repeated smashing into her vehicle, which was not supported by the physical evidence. b. The Accused when first confronted did not believe he had done anything wrong. c. The Crown did not conclusively prove he was in possession of the keys for the vehicle. d. The Accused was not near the vehicle when the police drove by it and when first spotted was, while apparently walking in the direction away from where the vehicle was later found, on his own lawn some distance from his car. [15] It is now necessary to address the issues raised by the Accused in his application to exclude evidence, because the Accused is asking among other things to exclude the evidence of the fob and keys which is significant part of the circumstantial case against the Accused. For that reason will now review the evidence as it relates to that detention. [16] Constable Johnstone was the first police officer on the scene. He was aware that Ms. Krakowetz was complaining that her neighbour had driven his vehicle into hers and had driven away. While he was talking to Ms. Krakowetz about her complaint they observed the Accused, staggering down the lawn towards them. He identified himself as policeman and asked him to stop, but the Accused ignored his commands, “so grabbed on to him, at which time he fell down to the ground and placed handcuffs on him while sorted out what was going on at the situation”. Evidence would indicate that the Accused was detained at about 11:49 p.m. Johnstone had no further dealings with the Accused. He could not remember if he removed the handcuffs or not, but turned the Accused over to another police officer, Constable Gilbertson. [17] Constables Gilbertson and Lambe arrived, also in response to Ms. Krakowetz’s complaint. Constable Gilbertson testified that when he got there, Constable Johnstone was already there, dealing with Mr. Keil. As he approached he noted Constable Johnstone attempt to grab hold of the Accused who fell to the ground. He then dealt with the Accused as Johnstone went to talk to the complainant. It was apparent to Constable Gilbertson that the Accused fell to the ground due to his state of intoxication. [18] At that point in time Gilbertson and Lambe believed that Mr. Keil was being detained while Constable Johnstone investigated a possible hit and run or impaired driving charge because he was basically identified as the person responsible by the witness and was found outside the house where the offence had taken place. Constable Gilbertson believed the Accused was impaired due to his falling to the ground, the strong smell of alcohol, bloodshot and glassy eyes, and slurred speech. He was asked to retrieve his identification from his wallet and three times removed from his wallet and presented to the officers his Visa card. (I presume that he no longer had handcuffs on when he went searching through his wallet.) [19] In addition the Accused swayed when he walked. [20] Constable Gilbertson testified that based upon the information in the dispatch, the Accused’s level of impairment and proximity to the scene of the hit and run, he had grounds to detain the Accused for further investigation of the hit and run and impaired charge. He then put the Accused in handcuffs and patted him down for officer safety. He testified “when he was patted down, found in his pocket was set of keys and key fob”. Constable Lambe testified that it was he who detained the Accused and searched him. The only reason he gave to search was because he was detained. He took it upon himself to remove the keys and fob from the Accused’s pocket. [21] By this time Constable Johnstone had learned from the witness that the Accused’s vehicle was around the corner. He and Gilbertson went in search of that vehicle, found it and confirmed it belonged to the Accused by using the key fob to set off horn or other signal in the car. Upon locating the vehicle and ascertaining that it had recently been driven, the police officer called his partner, Constable Lambe, who had remained with the Accused, to arrest him for impaired driving and to give him his rights and warnings as well as the Intoxilyzer demand. [22] The Defence raises several breaches of the Charter. He alleges that the police did not promptly notify the Accused of the reason for his detention and did not immediately give him his rights to counsel, thus breaching s. 10(a) and (b) of the Charter. He alleges that the police in conducting the search and seizing the keys and fob as result, conducted an unreasonable search and therefore breached s. of the Charter. He alleges that the police did not have sufficient information to detain the Accused and therefore arbitrarily detained him violating s. of the Charter. As result of these breaches the Accused wishes me to exclude all of the evidence that occurred after his detention pursuant to s. 24(2) of the Charter. [23] The Accused was detained at approximately 11:49 but was not arrested until approximately 12:01. During the time of his detention he was handcuffed and in the back of patrol car. There was no evidence led to indicate that at any time during that 11 minutes of detention the Accused was advised of the reason for his detention and Constable Lambe testified that he did not advise him that he could consult counsel. As indicated the Accused was being detained while the police investigated further. At the time of his detention the police relied upon the complainant’s evidence that the Accused had driven into her vehicle and then sped off. In addition they observed the Accused to be intoxicated. He was detained while they further investigated the allegation of hit and run and the possible charge of impaired driving. [24] In R. v. Mann, 2004 SCC 52 (CanLII), [2004] S.C.R. 59, the Supreme Court discussed the concept of “Investigative Detention” and said at least four things about it that are relevant to this case: (1) there is no general power of detention for investigative purposes, however, police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to particular crime and that the detention is reasonably necessary on an objective view of the circumstances; (2) at minimum, individuals who are detained for investigative purposes must be advised, in clear and simple language, of the reasons for the detention; (3) they should be brief in duration, so compliance with s. 10(b) should not excuse prolonging, unduly and artificially, the detention, and (4) where police officer has reasonable grounds to believe that his safety or the safety of others is at risk, the officer may engage in protective pat-down search of the detained individual. [25] conclude that the police had grounds to detain the Accused for the investigation of the crime of hit and run. At that time, they believed and it was reasonable to believe, that the witness had positively identified the Accused as the operator of motor vehicle that banged into her car and driven off. Once they saw his degree of impairment they had evidence to detain him on charge of impaired driving. have concluded that the police, on an objective view of the circumstances, had sufficient grounds to detain him. [26] Once detained they did have the power to search him, however, the Court in Mann clearly stated that search incidental to lawful arrest proceeds under different rules and criteria than search of an individual being detained for investigative purposes. As the Court said in Mann: note at the outset the importance of maintaining distinction between search incidental to arrest and search incidental to an investigative detention. The latter does not give licence 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. [27] The general duty of officers to protect life may give rise to the power to conduct pat-down search incidental to an investigative detention. However, this 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 and the police must understand that the power to detain for investigative searches does not allow for incidental search for anything but weapon. search for weapons may only be carried out when the officer has reasonable and probable grounds to believe that the detainee is carrying weapons or is dangerous and armed person. [28] do not think police understand the distinction allowing for search of an individual when they are detained for investigative purposes and when they are detained for arrest. The courts allow for only minimal intrusion into the privacy of an individual when the detention is to further an investigation, and while an officer may say that he is patting the detainee down for safety reasons, there has to be some objectively reasonable grounds present for that pat-down. The Court allows search for officer safety, however, this may be, while detainee is in investigative detention, no more that minimal pat-down search for weapons, not search for evidence. In this case, objectively speaking, there was no particular reason for the officer to be concerned for the safety of himself or others when he did the search. Indeed, Officer Lambe who did the search, did not testify it was for officer safety, but that he did the search as matter of course. When he patted the pocket of the Accused there was no way that the keys or fob could feel like weapon. When he reached into the Accused’s pocket, it was not for his or anyone else’s protection but to retrieve the means to help locate the Accused’s vehicle. [29] The search of the Accused and the retrieval of evidence from his pocket was breach of the Accused’s right to be free from an unreasonable search and seizure. It was warrantless search and it was unjustified, unreasonable and illegal. [30] As indicated have already determined that the detention was not arbitrary, the police had the requisite subjective and objective grounds to detain this Accused for further investigation. However, an officer who detains for investigative purposes must inform the Accused of the reason for that detention and must also inform him of his rights to counsel, without delay. Suberu v. R., 2009 SCC 33 (CanLII) and R. v. Mann, (supra). [31] In this case, Constable Lambe testified that when the Accused was detained for further investigation, he was not advised of his right to contact counsel. Given the series of events have concluded that the police officer most likely did not advise the Accused of the reason for his detention. Constable Lambe testified Mr. Keil was being held to verify his identification, yet the police already knew who he was from the witness, his neighbour, and they had reviewed his driver’s licence on which his address and name were printed. have concluded then that the Accused’s rights under sections 10(a) and 10(b) were infringed. [32] Thus am faced with case where the defence has satisfied me that the police conducted an unreasonable search and that the police breached the Accused’s rights for about 11 minutes, by not informing of the reason for his detention and by not giving to him his right to contact lawyer without delay. must now determine if as result of those breaches should exclude the evidence of what followed pursuant to s. 24(2). [33] Section 24(2) requires that judge exclude evidence that was obtained in manner that infringed or denied any rights or freedoms guaranteed by the Charter, if it is established that, in all the circumstances, its admission would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32 (CanLII), the Court elucidated the meaning of “bring the administration of justice into disrepute” and explained that the objective of s. 24(2) is to prevent the evidence obtained through breach from further damaging the repute of the justice system. It is to protect the system, not punish the police or the state. [34] The role of the Court is to make an objective assessment, based upon all the circumstances of the case before it and of the values underlying the Charter section breached, and determine if inclusion of the evidence would cause the public to think less of the justice system (Grant, para. 68). The Court asks itself does inclusion of the evidence obtained from breach (1) send the message that the Court condones state misconduct; (2) sends the message that protection of the Accused’s Charter rights matter little; or (3) does society have greater interest in adjudicating the case on its merits (Grant, para. 71). While each case must be determined on its unique circumstances the Court in Grant hinted at the outside parameters of the analysis when at para. 127 it said: “where reliable evidence is discovered as the result of good faith infringement that did not greatly undermine the Accused’s protected interests, the trial judge may conclude that it should be admitted under 24(2).” Conversely the Court went on to say, “... deliberate and egregious police conduct that severely impacted the Accused’s protected interests may result in exclusion, notwithstanding that the evidence may be reliable.” [35] I have determined in this case that the breaches were numerous and point to ignorance on the part of the police as to the distinction between their powers upon arrest and their powers upon investigative detention. As soon as the police were able to confirm that the Accused’s vehicle had recently been operated they formally arrested him, informed him of the reason for the arrest and gave him his rights to counsel, the police warning and demand to supply suitable sample of his breath as they were required to do. The approximate 11 minutes of investigative detention was not an infringement of his rights, but the combination of their failing to inform him of the reason for his arrest, and not giving his rights to counsel without delay, coupled with the illegal search and seizure of the fob and keys were in total breaches serious enough to bring the administration of justice into disrepute. The police were mistaken and as result wilfully set out to ignore the Accused’s rights. The search and seizure of the keys and fob had impact on the case. They were used to identify the Accused’s vehicle and the Accused as possible driver of that vehicle. I therefore exclude the evidence of the fob and keys. Applying the Grant analysis, would not, if it were required, have excluded any other evidence. [36] However, the exclusion of that evidence of the fob and keys further weakens the circumstantial case against the Accused to the extent that the Crown has failed to prove beyond a reasonable doubt that the Accused was the operator of the motor vehicle. [37] As a result the Accused is found not guilty of both charges before me. B.M. Singer,

The accused's neighbour disliked the accused and alleged that the accused drove his vehicle into hers. The police arrested the accused and found a fob that operated the locks on the doors of the vehicle and the engine hood of the accused's vehicle was warm. The accused was charged with hit and run and impaired driving. HELD: The Court found the accused not guilty of both charges. The Court found that the police breaches of the accused's Charter rights were numerous. The approximate 11 minutes of investigative detention was not an infringement of his rights but the combination of the officers' failing to inform the accused of the reason for his arrest and not giving his rights to counsel without delay, coupled with the illegal search and seizure of the fob and keys were in total breaches serious enough to bring the administration of justice into disrepute. The Court excluded the evidence of the fob and keys which further weakened the circumstantial case against the accused to the extent that the Crown failed to prove the accused was the operator of the motor vehicle.

8_2012skpc79.txt

J. IN THE SUPREME COURT OF NOVA SCOTIA Citation: Jeffery v. Naugler, 2006 NSSC 43 Date: 20060210 Docket: S.H. No. 193869 Registry: Halifax Between: Girth Ruth Jeffery Plaintiff/Respondent v. Chris Naugler Defendant/Applicant Judge: The Honourable Justice M. Heather Robertson Heard: September 28, 2005, in Halifax, Nova Scotia Written Decision: February 10, 2006 Counsel: Sarah L. Harris, for the plaintiff/respondent Christa M. Hellstrom, for the defendant/applicant Robertson, J.: [1] The defendant’s motion for summary judgment arises out of an automobile accident that occurred on May 22, 2001. The plaintiff was driving from Halifax to Seabright on Highway 103. She alleges that when the defendant driving tractor-trailer passed her vehicle, piece of metal came off of his vehicle, fell to the pavement, bounced on to the engine bonnet of her car, hit the left front fender near the aerial and then the wind blew it in through her open driver’s side window. [2] The plaintiff says that this caused her to remove her hands from the steering wheel to brush the metal away from her face. The plaintiff says her glasses were knocked off her face to the floor of the vehicle. The plaintiff says that in grabbing the steering wheel, her hand became caught in the opening of the wheel and this resulted in an injury to her as she turned the wheel, attempting to regain control of her vehicle. The plaintiff claims damages for injuries to her arms, shoulders and neck. [3] The defendant engaged two experts who examined the piece of metal and reported that the metal did not come from the tractor-trailer. The defendant says that the claim is factually unsupported and cannot be proved and there is therefore no issue to be tried. [4] The defendant correctly relies upon the operation of Civil Procedures Rule 13.01(a) and Supreme Court of Canada judgments, Hercules Management Ltd. v. Ernst Young, 1997 CanLII 345 (SCC), [1997] S.C.R. 165 (S.C.C.) and Guarantee Co. of North America v. Gordon Capital Corp., 1999 CanLII 664 (SCC), [1999] S.C.R. 423 (S.C.C.). They also rely upon the Nova Scotia Court of Appeal’s decision in United Gulf Developments Ltd. v. Iskander, 2004 CarswellNS 67 (N.S.C.A.) where that court adopted the Supreme Court of Canada’s test for summary judgment applications as outlined by Moir J. in Binder v. Royal Bank, 2003 CarswellNS 309 (N.S.S.C.). [5] It is now well established law that the applicant for summary judgment must meet threshold test and establish that there is no genuine issue of material fact requiring trial. Once the applicant has succeeded in meeting this test the respondent must then establish that his or her claim is one with real chance of success. [6] In Selig v. Cook’s Oil Co. 2004 CarswellNS 328 (N.S.S.C.) MacAdam J. adopted useful outline of five propositions that had been accepted by Rooke J. in Jagar Industries Inc. v. Canadian Occidental Petroleum Ltd., [2000] A. J. No. 994 (Alta Q.B.). (1) It is not open to Respondent on summary judgment application to argue that triable issue exists based upon facts or evidence not currently available but which may emerge at discovery or trial. (2) Where an Applicant has shown there are no facts in issue for trial, it is incumbent upon the Respondent to adduce evidence that it has reasonable chance of success at trial. (3) It is not sufficient for Respondent who resists summary judgment to present only bare allegations of fact; the Respondent must present evidence which lends some support to the claims it advances. (4) It is appropriate to summarily dismiss Third Party action for indemnity where the evidence shows no claims are advanced in the Plaintiff's pleadings which give rise to an obligation to indemnify. (5) summary judgment application may be made at any time. There is no need for an Applicant on summary judgment application to await the outcome of examinations for discovery before applying for and obtaining judgment. [7] The respondent in reply must therefore not simply rely upon the allegations made in the pleadings, but must present, by way of affidavit or other evidence, specific facts showing that there is genuine issue to be tried. [8] In considering the motion, the Chambers judge must consider not only the pleadings, but the other available documentation such as discovery evidence, admissions of fact, affidavit evidence or other evidence then available. Dawson v. Rexcraft Storage Warehouse Inc. 1998 CarswellONT 3202 (Ont. C.A.). [9] As stated by Justice Borins in Dawson, supra, at para. 13: The essential purpose of summary judgment is to isolate and then terminate, claims and defences that are factually unsupported. ... He then continues However, as most motions for summary judgment focus on the factual foundation of the claim or defence, their legal sufficiency does not arise frequently on motion for summary judgment. Even though there is no genuine issue for trial with respect to the facts, plaintiff is not entitled to summary judgment if the facts do not establish cause of action which entitles the plaintiff to some remedy from the defendant. [10] The plaintiff acknowledges the defendant’s expert reports, but says that nevertheless her evidence on discovery is that she saw the piece of metal dangling from the defendant’s trailer as it passed her motor vehicle. The plaintiff asserts that she has therefore established the factual underpinning to support her cause of action and is entitled to have her credibility on this evidence tested at trial. The plaintiff argues that neither of the expert reports refute her eye witness testimony. [11] The report of Bryden G. Ryan, Licensed Mechanic and Stuart D. Smith, B.Eng., Ph.D., Ph.Eng., of C.R. Tyner and Associates Ltd. included an appendix of photocopies of the piece of metal. It measured 13 18 centimetres (5 inches) and weighed approximately 140 grams (5.0 ounces). Also attached to the report were photos of the defendant’s vehicle and trailer, as well as photograph of pair of new original equipment brake backing plates (dust shields) purchased to compare them to the existing brake backing plates on the trailer to eliminate the suggestion that the piece of metal examined could have been piece of corroded brake backing plate on the trailer. An original brake backing plate examined on the trailer showed some corrosion and had dissimilarly sized piece missing from it. This was the reason for this line of inquiry as every other area of the trailer was upon inspection found to be in tact and in good repair. [12] The conclusion reached by Mr. Ryan after his examination of the metal and the vehicle and trailer was “The piece of metal is not and never has been part of the tractor-trailer.” Nor upon examination of the tractor-trailer was he able to find any location near the drive wheels or near the trailer wheels where the piece of metal could have been dangling. [13] H. A. Hancock metallurgical engineer examined the piece of metal in question and compared it to the purchased original equipment brake backing plate which he called dust shield in his report. He stated: In my opinion, the two samples of metal examined do not come from common source. They were both made from low carbon steel sheet which had been partly work hardened. This is common material used in the manufacture of motor vehicles. However, there was small but significant difference in the thickness of the sheet and also in the type of coating applied to it. The dust shield was painted which is the usual method used by the automotive industry to protect against corrosion. Given the exposed location of the dust shield, might have expected an additional coating of zinc as added corrosion protection but have no experience with truck parts of this type. The metal fragment has been coated with an aluminum-silicon alloy, probably by hot dipping process. The aluminum-silicon alloy formed metallurgical bond with the steel which is the second layer between the outer alloy coating and the steel. This type of coating may be used to protect the steel from corrosion but the most common application is to protect the steel from oxidation due to exposure to elevated temperatures. The fragment seems to have been exposed to road salt. One possible source of the fragment is the exhaust system from car or truck. He concluded: 1. In my opinion, the two samples tested did not come from common source. 2. Both samples were made from low carbon sheet steel which had been lightly cold worked. They had similar microstructures and hardness. 3. There was small but significant difference in the thickness of the coated steels. 4. The coating systems used on the two samples were quite different. The dust shield was painted and the fragment was coated with an aluminum-silicon alloy, probably by hot dipping. 5. The coating employed on the metal fragment strongly suggests that it was intended for an application where high temperatures were expected. [15] The defendant asks the court to conclude from their expert reports that the piece of metal the plaintiff alleges hit her vehicle and caused her injury did not come from the defendant’s vehicle and could not have been dangling from the defendant’s vehicle. [16] The defendant acknowledges the possibility that if the metal piece was lying on the highway it could have become airborne as the defendant’s vehicle passed the plaintiff’s vehicle. In this event they submit that the remoteness of cause would save the defendant harmless from liability. [17] In her discovery testimony the plaintiff gives varying answers when questioned as to where, on the defendant’s vehicle, she saw the piece of metal dangling. [18] The plaintiff indicated that she saw the metal dangling “between the two back wheels of the truck” and upon examining photo of the truck and trailer she pointed to an area between the second tire and third tire of the trailer in the area of the tool box. She agreed that she saw the metal dangling from the truck as it was passing her vehicle but expressed less certainty about where she might have seen the metal she variously described as “dangling” or “hanging” or “swaying back and forth.” [19] The plaintiff said in discovery that she was worried about the piece of metal and said to her son “I think that’s going to come off.” Her son Russell Parker when questioned at discovery did not remember this conversation. He testified that he just saw the piece of metal hitting the mirror of his mother’s vehicle. He agreed that since he was in the passenger seat he did not see the metal actually dangling from the trailer and said “I seen it come from underneath the wheels of the trailer.” He then suggested to his mother that they follow the tractor-trailer and get its license number although they did not flag it down and speak to the driver. [20] The plaintiff submits that her discovery evidence is not bare allegation, but material fact that if accepted at trial gives the plaintiff real chance of success. The plaintiff relies on Doug Beohner Trucking Excavating Ltd., 2004 CarswellNS 70 (N.S.S.C.) at para. 17 “There must be real distinction or difference of evidence requiring the court to make determination of credibility.” [21] The plaintiff further submits that the only way in this case that there could not be material fact in issue is if there was an agreement between the parties that this piece of metal was in fact dangling from the defendant’s tractor-trailer prior to the plaintiff being hit by the same piece of metal. [22] In asserting that the defendant is liable in negligence for her injuries the plaintiff relies on s. 248 of the Motor Vehicle Act: Onus of proof of liability 248 (1) Where any injury, loss or damage is incurred or sustained by any person by reason of the presence of motor vehicle upon highway, the onus of proof (a) that such injury loss or damage did not entirely or solely arise through the negligence or improper conduct of the owner of the motor vehicle, or of the servant or agent of such owner acting in the course of his employment and within the scope of his authority as such servant or agent; (b) that such injury, loss or damage did not entirely or solely arise through the negligence or improper conduct of the motor vehicle, shall be on the owner and operator of the motor vehicle. [23] The plaintiff argues that having established by her eye witness testimony that the piece of metal flew in the window and caused her injury the onus has shifted to the defendant to show that the injuries were not entirely or solely arising through his negligence. [24] The plaintiff cited two cases where objects have been airborne and caused damage or injury and defendant’s were found liable. [25] In Amos v. Watkins [1995] N.J. No. 409, the plaintiff made claim for property damage to the sunroof of his vehicle and alleged that rock flew from the dump truck that proceeded ahead of him. [26] The trial judge found direct causal link between the defendant carrying gravel and the plaintiff suffering the loss, as he found that the defendant trucker could have reasonably foreseen that the small rock sighted by the plaintiff bouncing out of the truck, would pose hazard to vehicle driving behind. [27] The respondent argues that the foreseeability is matter that should be left to the trial judge. [28] And similarly, in the case of Thomas v. Scott [1976] N.J. No. 63 the plaintiff says foreseeability was an issue determined by the trial judge where plaintiff had alleged that rock had flown from the rear wheels of the defendant’s truck toward his vehicle smashing the windshield and striking him in the chest. The defendant had acknowledged to police officer that large rock was jammed between the dual wheels and tires of the rear of his vehicle and that on the previous day he had tried to remove it without success. At trial he gave evidence that he had succeeded in removing the rock. This explanation was rejected by the trial judge. It was the defendant driver’s knowledge of the presence of the rock that led to finding that he ought to have foreseen that the rock constituted hazard to others. [29] However, these cases are distinguished on their facts. In Amos, supra, it was found that the truck driver hauling rock might reasonable foresee that his cargo could create hazard for vehicles travelling behind his. In Thomas, supra, the driver was actually aware of the presence of rock lodged between his double rear tires, that subsequently caused the damage and injury. [30] Here there is no evidence before me to suggest that the cargo of lumber hauled is in any way related to this mishap and there is no suggestion that the defendant was aware of or ought to have been aware of the 5" 7" piece of metal that allegedly flew from between the rear tires of the trailer. Further, plaintiff’s counsel had full opportunity to examine the defendant driver on discovery to explore these matters and no evidence arose respecting foreseeability or causation. [31] The plaintiff’s claim more closely mirrors the situation in Dorey .v. Oosterhoff 1989 CarswellONT 1645. [32] In that case it was found that the defendant had not seen the object that she drove over, which flew from beneath her vehicle and caused the plaintiff to swerve in avoidance of it hitting his windshield. He lost control and was hit by an oncoming van. The object was piece of muffler, not from the defendant’s vehicle, that was actually road debris. The defendant bore no liability for this unforeseeable event. [33] Having considered the pleading and the other evidence before me, I find that the defendant has met the threshold test. There is no genuine issue for trial with respect to these facts. [34] In responding to this application, the plaintiff has failed to adduce evidence to support the bare allegation made in these pleadings. [35] In the plaintiff’s pleadings the acts of negligence asserted are the defendant driver’s failure to maintain his vehicle, poor driving skills and lack of qualifications and driving at an excessive rate of speed. [36] However, the plaintiff has not offered any further evidence to support these claims. On the documentary evidence before me can only conclude that the defendant’s vehicle was well maintained, according to his expert Bryden Ryan and that the defendant has good driving record and the proper licensing to drive tractor-trailer. [37] Apart from the allegation made in the pleading see no further indication that the driver was speeding. The plaintiff’s evidence on discovery was that the driver was going fast and that to catch up to the defendant they needed to drive between 100-110 kph, not an inappropriate speed on 100 series highway. Nor has the plaintiff shown connection between the alleged rate of speed and the mishap of the flying metal piece. [38] Therefore, am left to consider the plaintiff’s bare allegation that the piece of metal that hit her car was dangling from the tractor-trailer, flew off in the manner earlier described, hit her vehicle and caused her injury. [39] Yet, the experts’ reports establish that this piece of metal did not belong to the tractor-trailer, nor upon inspection was there any place for such a piece of metal to dangle. [40] also note that this application was adjourned from August 2, 2005, to allow the plaintiff to secure their own expert report, although none was filed prior to this proceeding. [41] The expert reports filed by the defendant therefore remain uncontradicted. [42] claim in the tort of negligence can only succeed if the plaintiff can show that (i) that the defendant owed her duty of care, (ii) that he should have observed particular standard of care in meeting his duty, (iii) that he breached his duty by failing to observe this standard of care, (iv) that his breach of duty caused the damage or injury to the plaintiff, (v) that the damage or injury is not too remote consequence of breach so as to render the defendant liable for its occurrence. (The Law of Torts in Canada, Fridman, Vol. Toronto: Carswell, 1989.) [43] In my view, no trial judge or jury properly instructed would make finding of negligence against the defendant driver, having considered the body of evidence that is before me, in this application. [44] The plaintiff has therefore failed to show that this claim has any real chance of success. [45] The plaintiff cannot resist this summary judgment application by simply asserting that there are matters of the plaintiff’s credibility that can only be decided by a trial judge. [46] The plaintiff must demonstrate that if the matter proceeded to trial there would be remedy available to her. No evidentiary foundation has been laid to support or underpin the allegations made in the pleadings, apart from the plaintiff’s bare allegation. [47] The defendant should not be required to bear the expense of trial where the result is foregone conclusion that he would not bear liability for this mishap. [48] The defendant shall have summary judgment and costs for this application. In the absence of agreement by the parties the court is prepared to address the issue of costs. Justice M. Heather Robertson

The plaintiff alleged that a small piece of metal seen dangling from beneath the defendant's tractor trailer flew out from under the trailer as it passed the plaintiff's vehicle and hit her engine hood, bounced in the open window and caused her to lose control of her vehicle. She suffered injuries to her hands, arm and shoulder as she brought her vehicle under control. The defendant applied for summary judgment, presenting expert's reports to show that the metal did not come from his vehicle, nor upon inspection was there any location from which it might have dangled. Application for summary judgment granted; the defendant met the threshold test and the plaintiff failed to adduce any evidence beyond a bare allegation that this claim had a chance of success. The plaintiff cannot resist a summary judgment application by simply asserting that there are matters of the plaintiff's credibility that can only be decided by a trial judge.

5_2006nssc43.txt

No. SCCH 283438 Date: 20080320 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Young v. Clahane, 2008 NSSM 16 BETWEEN: CAROL YOUNG and PETER CLAHANE and KARISSA CLAHANE DECISION Adjudicator: David T.R. Parker Heard: October 24, October 30 and December 17, 2007 Decision: March 20, 2008 Counsel: The Claimant was self‑represented. Peter and Karissa Clahane were represented by Counsel Donn Fraser Parker:‑This case came before the Small Claims Court on October 24, 2007, October 30, 2007 and December 17, 2007, with further submissions by the Defendant filed on December 19, 2007 and the Claimant on December 20, 2007. Following the last hearing date of December 17, 2007, Counsel Donn Fraser made motion for non‑suit at the conclusion of the case for the Claimant. The Claim The Claimant claims $25,000.00 for damages. The reason for the claim is ‑"claim for damages‑house sale ‑ disclosure statement did not disclose a history of repeated flooding." The Claimant went on to plead the following facts: the Defendants stated there was damage to the chimney base, which was under repair and the heavy rain would cause seepage in the furnace room. The Claimant said this was a minor problem and the Defendants did not disclose that the place had flooded in the past. The Claimant stated the basement had flooded on at least one occasion. The Claimant stated that 12 years ago the Defendants rented the house and the tenants had flood. Later the Defendants moved back in and the Defendants burned out his shop vac cleaning up water in the basement and asked to borrow the neighbours' shop vac. The Claimant stated renovations were started and she discovered mould and or rot throughout the basement including the storeroom which was on the opposite side of the house from the chimney and has floor inches higher than the furnace room. The Claimant stated that the bottom of the studs and the sill in the back[store] room were rotted on all four sides of the room and had to be replaced. The floor in the room is approximately inches higher than the floor in the furnace room. Seepage from the chimney does not explain water on the other side of the house at least inches higher. Later when it rained, we discovered water was coming in at the corner where the two cement walls meet at the other end of the house where the chimney is. The Claimant stated that when the stairs to the main floor was removed the bottom of the stringers were rotted and the sub floor around the stairs was rotted and there was mould. New wood had been nailed onto the rotted wood. Each section of the floor and sub floor that was lifted the Claimant found mould. When the baseboards were removed mould was found growing on the gyproc. The mould was on two different walls neither of which was the furnace room wall. Some of the mould was on the west wall of the recreation room and the other mould on the gyproc was on the south wall beneath the windows. There were watermarks coming down the cement wall behind the gyproc below the windows. We discovered buried cistern there. The entire basement had to be gutted, and disinfected and rebuilt. The Claimant had permacrete company seal the cracks discovered in the walls and the joint where the two cement walls leaked. Wells were built outside the basement windows to prevent the melting of built up snow causing possible leaks at the windows During the rebuilding process there was small flood. Water was coming through under the exterior door, approximately to inches deep and feet in diameter. When the basement door was installed sometime in the past, the new concrete poured under the door did not bond with the original concrete and was not sealed The cost of removing rock and mould, rebuilding and preventative measures was an extra $13,862.00 over and above the cost of the planned renovations. On April 12, 2007 the downstairs apartment was flooding. Approximately inches of water covered the entire basement. It also flooded in what had been the storeroom which was about inches higher than the rest of the basement. Again the water/flood damage had to be repaired. The insurance company will pay for the flood cleanup and repairs to the inside, minus the deductible. The Claimant stated the water and damage materials were removed and the basement flooded again two weeks later. The basement flooded twice in the fall and twice in the spring. Since owning the home at the end of September the basement has flooded on six month schedule. The Claimant stated that she had the foundation dug up for repairs and discovered there was buried cistern, partly under the south east corner of the house and extending outwards to the east. The cistern was concrete tank in the ground; it's similar to small swimming pool, used for collecting rain prior to municipal water service. The cistern was partly filled in with earth by the Defendants and it was still acting like cistern filling up with rainwater and melting snow. There was nowhere for the water to go except against the foundation, there were no weeping tiles and when holes were drilled in the cistern water came gushing out. The Claimant stated the Defendants owned the property from June 27, 1992 September 29, 2006 had partially filled the cistern in with rocks and soil and they were familiar with it. The Defendants started filling the cistern in after the cover of the cistern started to cave in. This was not mentioned in the disclosure statement. The Claimant stated that digging up the foundation to find and correct the problem cost another $11,400.00. The Claimant stated that in addition to the extra costs there was loss of rent for one month for both apartments. The Claimant stated the apartment units were advertised and she had to keep putting off the interested parties because of the extra repairs and the flooding in October‑November. The rent for the upstairs was $950.00 in the downstairs was $600.00. The Defence In addition to denying each and every allegation the Defendants offer plethora of defences. The Defendants deny any non‑disclosure, misinformation or misrepresentation. The Defendants stated they disclosed their knowledge of the relevant condition of the property to the Claimant and/or their real estate agent. The Defendant stated the real estate agent of the Claimant was aware of the condition of the property prior to the purchase. The Defendant pleads the doctrine of caveat emptor and rely upon the law of agency. In the alternative the Defendants stated that if any information relayed should be proven inaccurate or incomplete or that any non‑disclosure should be proven, then the Defendants deny that the Claimant relied upon any such information so conveyed or any impression formed on account [of] any alleged non‑disclosure or that the Claimant was induced to purchase the property by virtue of any such information. The Defendant further stated that any opinion held by the Claimant on the property was formed independently of the Defendant. Further the Defendants stated the Claimant did not suffer any damage due to any non‑disclosure, misinformation or misrepresentation, nor is any damage casually connected to any act or omission of the Defendants. The Defendants claim it was the negligence of the Claimant that resulted in damage and the Defendants plead the Contributory Negligence Act, R.S.N.S. 1989 c.95. The Defendants also claim that the Claimants failed to mitigate any losses and that any damages in any event are too remote to the compensable in law. Motion for non suit: The Defendants brought motion to this Court for non‑suit and argued that the Claimant did not make out her claim as evidence of the necessary elements to prove the claims are not present. The law related to non‑suit of person's claim has been dealt with in an earlier decision of this Court and shall provide the relevant portions of that case here and which shall rely upon. Following the last hearing and the motion for non‑suit the Defendants provided what they termed as clarification on one point in their submissions to the Court. The correspondence dated December 19, 2007, really focused on review of the evidence have received at trial on the matters they raised and do not believe adds any new arguments already provided at the hearing. The Claimant also provided the Court with post‑hearing submissions dated December 20, 2007, advising the Court she would like to clarify point. The point of this letter from the Claimant is that she expected both sides to state their case and to defend their position. The Claimant said in her letter, "I was shocked that the case could be dismissed before both sides have testified. If that happens do not get chance to cross‑examine the Defendants or their witnesses." The Court asked if that was all my evidence. That was all of my witnesses and all of the evidence related to their testimony. had no further evidence to give on their testimony. The remaining evidence was related to the Defendants' upcoming testimony. It was in the possession of both the counsel for the defense and myself. It was obtained from their counsel in requests for disclosure. wasn't deliberately withholding evidence. They had it to start with. Apparently was very mistaken in thinking that the evidence would be presented when the appropriate witness was on the stand to testify to it. admit that don't understand the workings of the court. The information booklet provided by the court indicates that when both parties appear in court, they each have their say and are cross examined. It does not say anything about the possibility of non suit motions. was told that if didn't subpoena my witnesses and they failed to show for any reason, my case could be dismissed. There was no mention of circumstances in which Defendant can avoid testifying once the hearings have started. realize that the motion Mr. Fraser is asking for is legal. realize that the court sittings entail considerable legal expenses for the Clahanes. They have the right to retain legal counsel, or not, as they choose. It is my observations that the "People's Court", although following all of the legal guidelines, is straying from the purpose it was intended for. The common person is not operating on level playing field when facing an opposing counsel with vast experience and law degree. Many of us have no experience with the courts because we have abided by the law. It is ironic, but that works against us when we need the courts. am asking that will be given the same right to question the Defendants in court, as they had the right to question me." The Small Claims Court is court of law and the principles of law are part of the make up that is imposed upon the litigants and those that hear the case. fully understand that the Claimant as she acknowledges does not have legal training and agree with her statement, at least seemingly that "the common person is not operating on level playing ground when facing an opposing counsel with vast experience and law degree." Counsel can have an advantage in that they have knowledge of elements that are necessary in order for person to prove claim in court of law or what elements are missing from person's claim. person judging the proceedings in my view should not be involved in the conflict itself. There is fine balance between an adversarial process and an inquisitional process that raises itself often in Small Claims Court proceedings. In my view it is necessary to allow the parties to present all the facts that can be proven in court of law. Prior to the proceedings beginning both sides are asked if they have any questions about the proceedings and even if they do not they are told the way the court proceeds, what the Claimant must prove in general terms and what the Defendant must do if they so choose. It is not the function of the decision maker to tell the litigants who they should call as witness or whether they should provide evidence or not, to support their case. The Law Relating to the Motion of Non‑Suit; This area was dealt with in previous decision which shall refer to and being cited as Gulf Trading Inc. v. Irving Oil [2007] N.S.J. No. 3.paragraphs 12 through 21: "The Law 12 will first layout the law on non‑suit motions. 13 The case of Walker v. Scotia Career Academy Ltd. 177 N.S.R. (2d) 316 was submitted by Counsel which thank him for, and deals with Small Claims Court matter that was appealed to the Supreme Court wherein the Small Claims Court refused motion for non‑suit. The motion for non‑suit would succeed only if the evidence before the Small Claims Court would show there was fundamental breach of contract that would lead to total lack of consideration on the part of the Appellant. The Supreme Court looked at the facts as determined by the Small Claims Court and said those facts did not amount to fundamental breach and since it had to exist in order for the Respondent (Claimant) to succeed the motion for non‑suit should have been granted. 14 The case Knox v. Maple Leaf Homes [2002] N.S.J. No. 555, Justice LeBlanc of the Supreme Court of Nova Scotia discusses the parameters of non‑suit motion. 15 At paragraph 18, Justice LeBlanc referencing other cases stated, 18 The test on non‑suit motion is whether the plaintiff has established prima facie case, or, as it is sometimes described, "whether jury, properly instructed on the law could, on the facts adduced, find in favour of the plaintiff": MacDonell v. Developments Ltd. (1998), 1998 CanLII 4675 (NS CA), 165 N.S.R. (2d) 115 (C.A.). trial judge considering whether to grant non‑suit must consider the sufficiency of the evidence, not weigh it or evaluate its believability. The question is whether the inference the plaintiff suggests could be drawn from the evidence if the trier of fact so chose: Sopinka et al., The Law of Evidence in Canada (2d edn.)(Butterworth's, 1999) at para. 5.4. The decision depends "on all the circumstances of the case, including the issues of fact and law raised by the pleadings": J.W. Cowie Engineering Ltd. v. Allen, [1982] N.S.J. No. 39 (S.C.A.D.) at para. 15. 16 also refer to Justice Nathanson's decision David v. Halifax (Regional Municipality) [2003] N.S.J. No. 10 where he refers to Cross on evidence (4th Edition), para 66: "... questions of the sufficiency of evidence are usually raised on submission that there is no case to answer made by the opponent of the issue. When ruling on such submission, the judge assumes that the proponent's witnesses are telling the truth in cross‑examination, as well as in their evidence‑in‑chief, and on matters which are unfavourable to the proponent, as well as those which are in his favour. He may rule in favour of the submissions either because the proponent's evidence discloses no case as matter of law or else because of the weakness of the proponent's evidence." [emphasis added] 17 The case of Colford v. Randell et al. (1975) 20 N.S.R. (2d) 195 (S.C.T.D.) sets out the test for non‑suit motion and has been accepted by the Supreme Court of Nova Scotia in Pino v. Wal‑Mart Canada Inc. [1999] N.S.J. No. 514 at page where Justice Robertson stated: The Defendant has moved for dismissal of the case, pursuant to Rule 30.08, on the ground that upon the facts and the law no case has been made out. The case of Colford Randall et al (1975), 20 N.S.R. (2d) 195 (S.C.T.D.) sets forth the test: "In my opinion the changes in this rule were made merely to clarify the right of defence counsel to move for dismissal at the end of the plaintiff's case without electing whether or not to call evidence. do not believe there was any intention to change the grounds for the motion and interpret the rule to mean that the motion ... will only be granted if there was no evidence upon which jury properly instructed could find for the plaintiff. If prima facie case has been made out then the weight of the evidence is for the Court." 18 The case of Allied Signal Canada Inc. (c.o.b.) Allied Aerospace Canada v. Atlantic Electronics Ltd. [1998] N.S.J. No. 423. (N.S.S.C.) summarized the law on motions for non‑suit when it references Sopinka and Lederman's views in their test The Laws of Evidence in Civil Cases (Toronto Butterworths, 1974) at pages 521‑522 as follows: If plaintiff fails to lead sufficient material evidence, he may be faced at the close of his case by motion for non‑suit by the Defendant. If such motion is launched, it is the judge's function to determine whether any facts have been established by the plaintiff from which liability, if it is in issue, may be inferred. It is the jury's duty to say whether, from those facts when submitted to it, liability ought to be inferred. The judge, in performing his function, does not decide whether in fact he believes the evidence. He has to decide whether there is enough evidence, if left uncontradicted, to satisfy reasonable man. He must conclude whether reasonable jury could find in the plaintiff's favour if it believed the evidence given in trial up to that point. The judge does not decide whether the jury will accept the evidence, but whether the inference that the plaintiff seeks in his favour could be drawn from the evidence adduced, if the jury chose to accept it. This decision of the judge on the sufficiency of evidence is question of law; he is not ruling upon the weight or the believability of the evidence ... 19 have spent some time on this issue as to the law on motion for non‑suit as the Court is thought by some as the "people's court" and it often involves self‑represented litigants. Often case involves substantial monetary claims, such as is the case here and my sense is that Claimants are more and more being faced with such motions, particularly by Defendants who are represented by Counsel, as is the case here. did come across one case where the judge decided not to grant the motion it would appear simply because the Claimant was self‑represented and allowed the matter to proceed. However am more comfortable with the law as outlined above. 20 The Court of Appeal in this Province has said: "We must therefore in addressing the issues keep in mind whether having regard to the law and the facts which were induced in evidence, the judge was correct in concluding there was insufficient evidence, if believed, to satisfy reasonable person that the case could be resolved in the appellant's favour." Turner‑Lienaux v. Nova Scotia (Attorney General) 1993 CanLII 3224 (NS CA), [1993] N.S.J. No. 201. 21 This coupled with the notion that the facts induced in evidence which the Court of Appeal refers to is based on the premise that the Claimant's witnesses are telling the truth. It is not my role at this stage to make determination of the weight of the evidence but rather has prima facie case been made out. That is has there been sufficiency of evidence to show case in law exists or is the evidence insufficient and discloses no case in law. Further is the evidence just too weak to disclose any case upon which decision can be made." Without detracting or limiting in any way the above referenced law it is necessary for this Court to consider the law related to the Claimant's case and determine whether there is sufficiency of evidence without weighing the evidence or evaluating its believability to see if the Claimant has proven or provided the court was sufficient evidence to show they have case which is recognized by the law. Notwithstanding the pleadings which seemed to state the Defendants have breached its contract with the Claimant by misrepresentation in the Property Condition Disclosure Statement there is also the allegation of negligent misrepresentation. would deal with the law in this area and then consider the facts that have before this Court. recent case of the Supreme Court of Nova Scotia deals with statements in the PCDS which are made by the sellers of home which in this case are the Defendants. Associate Chief Justice Smith in the case of Gesner v. Ernst 2007 NSSC 146 (CanLII), [2007] N.S.J. no 211 made the following comments on PCDS: Property Condition Disclosure Statement is not warranty provided by the vendor to the purchaser. Rather, it is statement setting out the vendor's knowledge relating to the property in question. When completing this document the vendor has an obligation to truthfully disclose her knowledge of the state of the premises but does not warrant the condition of the property (see for example: Arsenault v. Pedersen et al., [1996] B.C.J. No. 1026 and Davis v. Kelly, [2001] P.E.I.J. No. 123.) 55 Support for this conclusion is found in the Disclosure Statement itself. While the top of the document indicates that the seller is responsible for the accuracy of the answers given in the Disclosure Statement, just above the signature line for the seller is the following statement .".. information contained in this disclosure statement has been provided to the best of my knowledge ...." Further, after the seller's signature is the following "NOTICE: THE INFORMATION CONTAINED IN THIS PROPERTY CONDITION DISCLOSURE STATEMENT HAS BEEN PROVIDED BY THE SELLER OF THE PROPERTY AND IS BELIEVED TO BE ACCURATE, HOWEVER, IT MAY BE INCORRECT. IT IS THE RESPONSIBILITY OF THE BUYER TO VERIFY THE ACCURACY OF THIS INFORMATION ..." [Emphasis in the original]. Finally, above the purchaser's signature line is the following statement "Buyers are urged to carefully examine the property and have it inspected by an independent party or parties to verify the above information." 56 Clause 13(b) of the Agreement of Purchase and Sale relating to this transaction reads as follows: 13(b) This agreement is subject to the Seller providing to the Buyer, within 24 hours of the acceptance of this offer, current Property Condition Disclosure Statement, and that statement meeting with the Buyers satisfaction. The Buyer shall be deemed to be satisfied with this statement unless the Seller of [sic] Seller's agent is notified to the contrary, in writing, on or before SEE ATTACHED. The seller warrants it to be complete and current, to the best of their knowledge, as of the date of acceptance of this agreement, and further agrees to advise the Buyer of any changes that occur in the condition of the property prior to closing. If notice to the contrary is received, then either party shall be at liberty to terminate this contract. Once received and accepted, the Property Condition Disclosure Statement shall form part of this Agreement of Purchase and Sale. 57 By way of this clause, Ms. Ernst warranted that the Property Condition Disclosure Statement was complete and current to the best of her knowledge. She did not warrant the condition of the property. 58 During the trial the issue arose as to whether vendor completing this document is being called upon to disclose her present knowledge of the property or her past and present knowledge. The answer to this question is found in the wording of the document itself. In my view, when question begins with the words "Are you aware" (present tense) the vendor is being asked about her knowledge of the present state of the property. Questions that begin with words such as "Have there been any problems with ..." or "Have any repairs been carried out ... in the last five years" refer to the past state of the property." refer now to the case Lewis v. Hutchinson [2007] N.S.J. No. 23 as it relates to the law concerning the concept of Caveat Emptor, disclosure, misrepresentation and latent and patent defects First Phase of Analysis 19 The starting point in any complaint brought before the court concerning defects that are complained of by purchaser in real estate transaction is the notion of Caveat Emptor or what is known as buyer beware. In the decision William v. Durling 2006 NSSM 21 (CanLII), [2006] N.S.J. No. 368 at paragraphs 18 and 19 it stated: 18 Caveat Emptor or buyer beware is the starting point in any purchase of home by buyer. It is the buyer's responsibility to ensure the condition of the property is in order and if there are problems with the property then the buyer does not have to purchase the property. This is subject to any contractual obligations or restraints put on the property. For example if the buyer enters into contract with the seller to buy the property "as is" then there are no warranties as to its condition unless the buyers can show there is collateral contract of some sort. This of course is subject to any legislative warranties imposed on the purchase of home and am not aware of any. 19 In the event there is misrepresentations made out by the seller that are fraudulent or negligent then the caveat emptor rule is circumvented. (See McGrath v. MacLean et al. (1979), 1979 CanLII 1691 (ON CA), 22 O.R. (2d) 784). 34 ... This doctrine has been softened considerably in the sale of goods due to legislative intrusion but that has yet to take place with the sale of real property and it should not be up to the court to impose its own warranties. [see Jenkins v. Foley, 2002 NFCA 46 (CanLII), [2002] N.J. No. 216] Second Phase of Analysis 20 The second phase of analysis involves what is the agreement between the parties; that is to say, what makes up the Purchase Sale Agreement, considering all addendums, schedules, amendments, and counteroffers. As well, does the PCDS form part of the agreement or is it somehow collateral to the main PSA. Third Phase of Analysis 21 This phase of the analysis involves the doctrine of merger and determination of what are warranties and what are mere representations. Once this is determined, it is necessary to determine if warranty survives the closing of the contract. Warranties that survive the contract will not be affected by the doctrine of merger and representations will take the Court into separate legal field of analysis involving misrepresentation. statement in contract unless clearly expressed as warranty may in fact be mere representation. The distinction between these two terms seems to be lost over the years and what might consider mere representation as found in PCDS are at times referred to as warranties. [Lang v. Knickle 2006 NSSC 177 (CanLII), [2006] N.S.J. No. 375] [Also see Whelan v. Gay [2006] N.S.J. No. 20 where Justice LeBlanc speaks about the distinction existing between representation and warranty.] warranty that is term of contract may give rise to claim in damages and it is here that consider the doctrine of merger. If warranty is term of the contract between the buyer and seller then upon closing the parties' rights are merged in the dead and there are no longer any rights emanating out of the contract. All rights and remedies must now be found in the deed provided to the Purchaser. The exception is that some warranties are terms in contract that survive closing and therefore provide the Purchaser with possible remedy. The determination on warranty's survival is articulated by Anger and Honsberger Law of Real Property, 2d edn. (1985) Vol at pp. 1214‑16, "did the parties intend that certain terms should or should not survive closing. It is the intention that governs, not presumption of merger." In order to determine intention it is necessary to consider all of the evidence, including the wording of the contract where it often states the warranty survives the closing. Also, the parties may have had particular discussions going back and forth concerning some clause in the contract and the Purchaser may have been satisfied that the warranty was timeless. Fourth Phase of Analysis 22 The next phase of analysis is to make determination on whether the PCDS is part of the Purchase Sale Agreement or whether it is collateral to the main contract. If it was part of the Purchase Sale Agreement then the doctrine of merger subject to any exceptions. In order to determine that, it would be necessary to consider intention of the parties as referred to in Phase of the analysis. Fifth Phase of Analysis 23 This phase of the analysis is to determine if there are any collateral warranties. Again, according to Anger Honsberger at page 1222, it must be shown that warranty was given in circumstances where it must be said to have been collateral to the main contract and as part consideration thereof. Again, the Trier of fact is required to assess the evidence and the intention of the parties. Sixth Phase of Analysis 24 The next phase of analysis is to determine if there have been misrepresentations made to the aggrieved party which are fraudulent or negligent. In going through this process must determine whether the statements made between the parties and/or in the documents are representations. Normally the PCDS is completed prior to or after the PSA has been executed by the Purchaser. However, again it comes down to the intention of the parties whether statement in the PCDS is representation or warranty or other clear wording in the Statement provided. 25 Fraudulent and Negligent Misrepresentation has been developed by the courts and have often referred to the summary outlined in the case Thompson v. Schofield 2005 NSSC 38 (CanLII), [2005] N.S.J. No. 66, wherein Justice Warner stated: The Law 16 Generally transactions involving the sale of real property are subject to the principle of caveat emptor with respect to the physical amenities and condition of the property. Absent fraud, mistake or misrepresentation, purchaser takes an existing property as he or she finds it unless the purchaser protects himself or herself by contractual terms. This is set out in several important decisions, some of which were included in the Defendant's memorandum, such as McGrath v. MacLean, (1979) 1979 CanLII 1691 (ON CA), 22 O.R. (2d) 784 (O.C.A.), and Edwards v. Boulderwood Development Corporation, (1984) 64 N.S.R. (2d) 395 (N.S.C.A.). It is referred to in Redican v. Nesbitt, 1923 CanLII 10 (SCC), [1924] S.C.R. 135. 17 In Edwards, our Court of Appeal found that the Defendant had made an innocent misrepresentation and was not liable to the seller with regards to the condition of vacant lot of land and further found that the innocent misrepresentation had been made after the contract had been entered into and therefore could not have influenced the entering into of the agreement. ....what constitutes negligent and fraudulent misrepresentation. 20 Fraudulent misrepresentation is dealt with, among other cases, by decision of Saunders, J., as he then was, in Grant v. March, (1995) 1995 CanLII 4474 (NS SC), 138 N.S.R. (2d) 385. At paragraph 20 of that decision he says: With respect to the first allegation, that is, that Mr. March fraudulently misrepresented the facts, the law on this subject was canvassed in Charpentier v. Slaunwhite (1971), N.S.R. (2d) 42. In that case, which involved problems with well, Jones J. (as he then was) cited [at p. 45 N.S.R.] G.S. Cheshire and C.H.S. Fifoot, The Law of Contract, 6th ed. (London: Butterworths, 1964), at page 226: representation is statement made by one party to the other, before or at the time of contracting, with regard to some existing fact or to some past event, which is one of the causes that induces the contract. Examples are statement that certain cellars are dry, that premises are sanitary, or that the profits arising from certain business have in the past amounted to so much year. And again on page 241, as follows: Fraud in common parlance is somewhat comprehensive word that embraces multitude of delinquencies differing widely in turpitude, but the types of conduct that give rise to an action or deceit have been narrowed down to rigid limits. In the view of the common law "a charge of fraud is such terrible thing to bring against man that it cannot be maintained in any Court unless it is shown that he had wicked mind". Influenced by this consideration, the House of Lords has established in the leading case of Derry v. Peak, that an absence of honest belief is essential to constitute fraud. If representor honestly believes his statement to be true he cannot be liable in deceit, no matter how ill advised, stupid, credulous or even negligent he may have been. Lord Herschel, indeed, gave more elaborate definition of fraud in Derry v. Peak, saying that it meant false statement "made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false," but, as the learned judge himself admitted, the rule is accurately and comprehensively contained in the short formula that fraudulent representation is false statement which, when made, the representor did not honestly believe to be true. 21 At paragraph 21, Justice Saunders quotes The Law of Vendor and Purchaser, 3d ed. by V. DiCastri (Carswell, 1988), as saying that to found claim for false misrepresentation one must do the following: "In order to succeed on the ground that contract was induced by false and fraudulent representations, plaintiff must prove: (1) that the misrepresentations complained of were made to him by the Defendant; (2) that they were false in fact; (3) that when made, they were known to be false or were recklessly made, without knowing whether they were false or true; (4) that by reason of the complained‑of representations the plaintiff was induced to enter into the contract and acted thereon to his prejudice; and (5) that within reasonable time after the discovery of the falsity of the representations the plaintiff elected to avoid the contract and accordingly repudiated it." The onus is on the plaintiffs to establish fraud on the part of the Defendant. Fraud is serious complaint to make, and the evidence must be clear and convincing in order to sustain such an allegation. 22 On the facts in Grant v. March, the trial judge was not satisfied that the Defendants knew of the water problems that existed and he further found that any representations that they did make were not made before the contract was entered into. 23 Another relevant decision cited in the Defendants' memorandum is Jung v. Ip, [1988] O.J. No. 1038, 1988 CarswellOnt 643 (O.D.C.), where the Court, in finding liability against the vendor for failing to disclose termite infestation, said at paragraph 18: It is now clear that the law of Ontario is such that the vendors are required to disclose latent defects of which they are aware. Silence about known major latent defect is the equivalent of an intention to deceive. In the case before this Court, there was nothing innocent about the withholding of the information. It was done intentionally. This was not an innocent misrepresentation. 24 In finding liability against the vendor for failing to disclose sediment problem with the well and sewer system in property disclosure statement, the Court in Ward v. Smith, [2001] B.C.J. No. 2371, 2001 CarswellBC 2542 (B.C.S.C.) discussed the application of the principles of negligent misrepresentation at paragraphs 33 to 39; quoting from paragraphs 33 to 35 of that decision (not as an authoritative decision but simply as one of the many that set out in summary nature what negligent misrepresentation is), Gotlib D.C.J. said: ... The requirements to establish claim in negligent misrepresentation were summarized by Mr. Justice Iacobucci in Queen v. Cognos Inc., 1993 CanLII 146 (SCC), [1993] S.C.R. 87, 99 D.L.R. (4th) 626 (S.C.C.), at 643: (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 misrepresentations; (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 their pleadings, the plaintiffs used the expression "reckless misrepresentation" which was understood, during the course of argument, to be negligent misrepresentation. am satisfied that, in fact, the Defendants did negligently misrepresent the quality of the available water by stating that they were not aware of any problems with the quality of the water .... The Defendants owed duty of care to the plaintiffs to not negligently misrepresent either the quality or quantity of the water supply. The Court went on to make determination that the Defendants negligently misrepresented the state of the water. He was satisfied that they knew the nature of the problem with the well, even though they may not have known the extent of the problem. 25 The Court's analysis in Swayze v. Robertson, [2001] O.J. No. 968, 2001 CarswellOnt 818 (O.C.J.), case involving flooding problem caused by defect in the foundation, is similar. 26 The plaintiffs rely upon the decision of Wright J. in Desmond v. McKinlay (2000), 2000 CanLII 2201 (NS SC), 188 N.S.R. (2d) 211, which decision was upheld by our Court of Appeal at (2001) 2001 NSCA 24 (CanLII), 193 N.S.R. (2d) 1. In Desmond v. McKinlay, Mr. Justice Wright, like the Court in Jung v. Ip found that silence could constitute negligent misrepresentation. At paragraph 43, he says: In the present case, the essential question in my view comes down to this. Was it an actionable misrepresentation for the vendor Joan McKinlay to have held out to the purchaser through her realtor's listing cut (with information provided by her) that the property was only 14 years old without further disclosing the fact that the water supply and sewage disposal systems servicing the property were in excess of 40 years old by an indeterminate length of time? have concluded that such partial disclosure of the true facts did create such misleading impression to the plaintiff, on which she relied to her detriment so as to create an actionable misrepresentation at law. 27 If this court finds that the answers given in the disclosure statement, which was incorporated in the agreement, were either negligent or fraudulent misrepresentations, there is no doubt that (a) they were material, (b) they were made at the time of the entry into the contract or the agreement of sale and were relied upon, and (c) based on the law as set out in Desmond v. McKinlay at paragraphs 48 to 51, they would constitute, in addition to negligent misrepresentations, breach of collateral warranty and thereby constitute breach of the agreement of sale. The Evidence Seventh Phase of Analysis 26 This phase of analysis involves patent and latent defects as that will determine whether there is remedy available to the Claimant. Again in the Scholfield case, Justice Warner succinctly defines latent and patent defects at paragraph 18: "A second legal question requiring clarification, for the purposes of this decision, is, what is patent defect and what is latent defect? patent defect is one which relates to some fault in the structure or property that is readily apparent to an ordinary purchaser during routine inspection. latent defect, as it relates to this case, is fault in the structure that is not readily apparent to an ordinary purchaser during routine inspection." 27 Reference here is also made to the case Jenkins v. Foley, 2002 NFCA 46 (CanLII), [2002] N.J. No. 216 case involving Defects found in home Chief Justice Wells of the Newfoundland Court of Appeal made the following observations of the Law: (b) As to liability of vendor to purchaser on discovery of defect subsequent to completion of the sale 25 The common law, in England, as to the duty and potential liability of vendor in contract for the sale of land can be conveniently summarized by quoting the following excerpts from Halsbury's Laws of England, Vol. 42, 4th ed., (London: Butterworths, 1983). 47. Avoidance of contract. In certain cases contract may be avoided on the ground that the consent of one of the parties was given in ignorance of material facts which were within the knowledge of the other party. contract for the sale of land is not contract of the utmost good faith in which there is an absolute duty upon each party to make full disclosure to the other of all material facts of which he has full knowledge, but the contract may be avoided on the ground of misrepresentation, fraud or mistake in the same way as any other contract, and also on the ground of non‑disclosure of latent defects of title. 51. Patent defects of quality. Defects of quality may be either patent or latent. Patent defects are such as are discoverable by inspection and ordinary vigilance on the part of purchaser, and latent defects are such as would not be revealed by any inquiry which purchaser is in position to make before entering into the contract for purchase. The vendor is not bound to call attention to patent defects; the rule is "caveat emptor". Therefore purchaser should make inspection and inquiry as to what he is proposing to buy. If he omits to ascertain whether the land is such as he desires to acquire, he cannot complain afterwards on discovering defects of which he would have been aware if he had taken ordinary steps to ascertain its physical condition ... 52. Concealment by the vendor. representation as to the property which is contradicted by its obvious physical condition does not enable the purchaser to repudiate the contract or obtain compensation, unless, in reliance on the representation, he abstains from inspecting it. However, any active concealment by the vendor of defects which would otherwise be patent is treated as fraudulent, and the contract is voidable by the purchaser if he has been deceived by it. Any conduct calculated to mislead purchaser or lull his suspicions with regard to defect known to the vendor has the same effect. 54. Latent defects of quality. Prima facie the rule "caveat emptor" applies also to latent defects of quality or other matters (not being defects of title) which affect the value of the property sold, and the vendor, even if he is aware of any such matters, is under no general obligation to disclose them. There is no implied warranty that land agreed to be sold is of any particular quality or suitable for any particular purpose. The vendor of house who sells it after it has been completed gives no implied warranty to the purchaser that it is safe, even if he is also its builder; but vendor, and builder, owes duty of care in negligence with regard to defects created by him ... 56. Disclosure by the vendor. In special circumstances it may be the duty of the vendor to disclose matters which are known to himself, but which the purchaser has no means of discovering, such as defect which will render the property useless to the purchaser for the purpose for which, to the vendor's knowledge, he wishes to acquire it; or notice served in respect of the property, knowledge of which is essential to enable purchaser to estimate the value. If the vendor fails to make disclosure, he cannot obtain specific performance and may be ordered to return the deposit. 57. Misdescription or misrepresentation as to quality. The vendor is bound to deliver to the purchaser property corresponding in extent and quality to the property which, either by the description in the contract (including any particulars of sale), or by representations of fact made by the vendor, the purchaser expected to get. Where, owing to misdescription, the vendor fails to perform this duty, and the misdescription, although not proceeding from fraud, is material and substantial, affecting the subject matter of the contract to such an extent that it may reasonably be supposed that, but for the misdescription, the purchaser might never have entered into the contract at all, the contract may be avoided altogether, and if there is clause of compensation, the purchaser is not bound to resort to it ... 26 The law in the common law provinces of Canada is substantially the same, as that set out above. It can be conveniently summarized by quoting the following excerpts from Di Castri, The Law of Vendor and Purchaser, 2nd ed. (Toronto: Carswell, 1988+). s. 236 Patent and Latent Defects as to Quality patent defect which can be thrust upon purchaser must be defect which arises either to the eye, or by necessary implication from something which is visible to the eye ... latent defect, obviously, is one which is not discoverable by mere observation. In the case of patent defect, as distinguished from latent defect as to quality or condition, and where the means of knowledge are equally open to both parties and no concealment is made or attempted, prudent purchaser will inspect and exercise ordinary care: caveat emptor. However, while inspection by purchaser bars him from complaint as to matters patent, the mere means of knowledge, or the opportunity to inspect when he has relied solely upon representation by the vendor, does not have this result. Neither is purchaser who is unqualified to make an effective inspection, and where, in any event, an inspection could not be conclusive, necessarily barred from relief ... But purchaser may still be without remedy as, on sale of land, there is, generally speaking, no implied warranty as to its use for any particular purpose. The onus is on the purchaser to protect himself by an express warranty that the premises are fit for his purposes, whether that fitness depends upon the state of their structure, the state of the law or on any other relevant circumstances. In the case of vacant lot, purchaser takes its quality as he finds it, or he seeks his protection in the terms of the contract. So, it has been held that plaintiff cannot complain where he has ample opportunity and in fact does cross‑examine the Defendant's agent on certain matter which, subsequently, the plaintiff alleges as the subject matter of misrepresentation. But, of course, purchaser can escape specific performance where there is an actionable misrepresentation as to use. It would seem that in the case of latent defect of quality, at any rate where unknown to the vendor, and not resulting in his purchaser being compelled to take something substantially different from what he contracted for, purchaser has no remedy either in damages or by way of rescission, unless he pleads and proves fraud or breach of warranty. The conduct of the vendor in concealing the true nature of patent defect will be treated as fraudulent where it has the effect of lulling the suspicions of the purchaser. Thus, damages are recoverable in the same way as though there were fraudulent misrepresentation ... Apart from contract or statute, in the case of an existing completed unfurnished house there is prima facie no implied warranty on the part of vendor as to the habitability of the house; ... 27 This area of the law received some, but not definitive, consideration by the Supreme Court of Canada in Fraser‑Reid v. Droumtsekas, 1979 CanLII 55 (SCC), [1980] S.C.R. 720. There, the Court was dealing primarily with differences between the law applicable to the sale by builder of an incomplete house and the law applicable to the sale by vendor of completed house. However, the Court did not interfere with the trial judge's finding that it was completed house and so had to deal with the question, of whether or not there was liability, on the basis of whether there existed an implied warranty or an express warranty. At page 723 Dickson J., as he then was, observed: Although the common law doctrine of caveat emptor has long since ceased to play any significant part in the sale of goods, it has lost little of its pristine force in the sale of land. In 1931, breach was created in the doctrine that the buyer must beware, with recognition by an English court of an implied warranty of fitness for habitation in the sale of an uncompleted house. The breach has since been opened little wider in some of the states of the United States by extending the warranty to completed houses when the seller is the builder and the defect is latent. Otherwise, notwithstanding new methods of house merchandising and, in general, increased concern for consumer protection, caveat emptor remains force to be reckoned with by the credulous or indolent purchaser of housing property. Lacking express warranties, he may be in difficulty because there is no implied warranty of fitness for human habitation upon the purchase of house already completed at the time of sale. The rationale stems from the laissez‑faire attitudes of the eighteenth and nineteenth centuries and the notion that purchaser must fend for himself, seeking protection by express warranty or by independent examination of the premises. If he fails to do either, he is without remedy either at law or in equity, in the absence of fraud or fundamental difference between that which was bargained for and that obtained. 28 Dickson J. then commented on the efforts by American courts to extend the implied warranty as to fitness, in contracts for sale by builder of an uncompleted house, to completed houses. At page 728‑29 he wrote: The American case law upon which the appellants must rely, however, is far from consistent, even ten years after the decision in Schipper v. Levitt Sons Inc. [207 A. 2d 314 (1965)], (S.C. of New Jersey). There is, however, distinct trend toward convergence of traditional products liability principles and those applying to new homes. The shift countenanced in the American courts has been to take the English principles applicable to home under construction and to extend those principles to completed houses, but only where the seller of the house is also the developer or builder and the house is new unoccupied house: Carpenter v. Donohoe [388 P. 2d 399 [1964] (S.C. of Col.); Loraso v. Custom Built Homes, Inc. [144 So. 2d 459 (1962)] (C.A. of La.); Bethlahmy v. Bechtel [415 P. 2d 698 (1966)], (S.C. of Idaho); Rothberg v. Olenik [262 A. 2d 461 (1970)], (S.C. of Vermont). It has specifically not been extended to the case of an unoccupied home sold by one owner to new owner. 29 Of more significance to the decision this Court has to make, in the matter before us, is his comment that change in this area of the law is best left to the legislature and ought not to be undertaken by courts. At page 730‑31 he wrote: The only real question for debate in the present case is whether removal of the irrational distinction between completed and incomplete houses is better left to legislative intervention. One can argue that caveat emptor was judicial creation and what the courts created, the courts can delimit. But the complexities of the problem, the difficulties of spelling out the ambit of court‑imposed warranty, the major cost impact upon the construction industry and, in due course, upon consumers through increased house prices, all counsel judicial restraint. would be inclined to reject the proposition advanced on behalf of the appellants for an extended implied warranty. It appears to me at this time that if the sale of completed house by vendor‑builder is to carry non‑contractual warranty, it should be of statutory origin, and spelled out in detail ... 30 Thus, in the sale of previously occupied completed house, the common law, in Canada, does not recognize an implied warranty as to fitness or suitability of the premises for the purpose intended by the purchaser. Absent fraud (including acts of concealment), or fundamental difference between that which was bargained for and that obtained, (such as premises later discovered to be dangerous), purchaser is not entitled to claim against the vendor either for rescission or damages 28 Justice Wells in commenting on the trial Judges summary of conclusions and his treatment of the law says as follows at paragraph 42: "While the trial judge specifically found that the respondents ‑‑ did not know the extent of the damage to their concrete basement walls prior to the sale of their home to the appellants, ‑‑ there was never any attempt on the part of the respondents to conceal any defect, ‑‑ nothing was covered or hidden by the painting of walls as alleged by the appellants, and ‑‑ there was latent defect in the basement walls which further deteriorated after the plaintiffs' purchase, he nevertheless explicitly found that, Although this defect was not concealed am of the opinion the [respondents] ought to have told the [appellants] they were experiencing some water problems ‑‑ however slight these problems may have been ‑‑ at the time of sale. It would appear that he came to that conclusion solely on the basis of his inferring that the respondents "knew or ought to have known that some water was leaking into their basement after heavy rainfalls" and that the respondents "knew their property had potential water problem". It is difficult to challenge his proposition as an ethical standard or as reflecting the expectation of any purchaser. However, its appropriateness as an ethical standard is not, alone, basis for applying it as legal duty, the breach of which will result in liability for damages. 43 Unfortunately that is what the trial judge did. He referred to no law and cited no authorities for his conclusion. He simply stated that: Failure to [tell the appellants that they were experiencing water problems], although not fraudulent misrepresentation as legally defined, is form of non‑disclosure which places some liability on the Defendants for the plaintiffs' damages. 44 That conclusion of the trial judge, that such non‑disclosure results in liability, is contrary to the principles quoted above from Halsbury's and from Di Castri, and contrary to the views expressed by the Supreme Court of Canada in Fraser‑Reid. It must, therefore, be held to be error in law. 45 understand the trial judge's inclination to conclude that the respondents, having the knowledge with respect to water problems after heavy rains which he imputed to them, ought to have told the appellants. That, however, does not permit me to approve of the trial judge's imposition of legal duty to disclose that knowledge, the breach of which "places some liability on the [respondents] for the [appellants'] damages". In concluding that it imposed such duty, resulting in liability for damages, the trial judge effectively found that the contract of sale contained an implied warranty by the respondents that the premises did not have any water penetration problems. That would amount to judicial change of the law, which Dickson J., in Fraser‑Reid, specifically determines ought to be left to the legislature. 46 For the foregoing reasons am of the view that the trial judge made an error in law when he concluded that failure by the respondents to disclose potential water problems after heavy rain storm, knowledge of which the trial judge imputed to the respondents, "is form of non‑disclosure which places some liability" on the respondents for the appellants' damages. As result he erred in finding that the respondents were liable to pay to the appellants..." Eighth Phase of Analysis 29 Once determination has been made to show there is liability of the Defendants, then the next consideration is whether the Claimant has proven damage and the ensuing damages arising therefrom. 30 This case involves remedies sought after completion of the contract and, as stated above, once the contract has been executed by delivery of the deed and the transaction has closed, the remedies of the purchaser are limited. It would appear that the Court must look at whether there are certain terms in the contract that specifically state that those terms survive the closing of the real estate transaction and, if not specifically stated, did the parties intend that certain terms should or should not survive closing. Then once that is considered it is necessary to consider the exceptions to the doctrine of merger, and that would be fraud, mutual mistake, collateral warranty and then to consider misrepresentation and finally defects. 31 have reviewed the Purchase/Sale Agreement and there is no mention of the heating system well or flooring in same. There is PCDS attached to the Purchase/Sale Agreement. The Purchase/Sale Agreement does not specifically say that the PCDS forms part of the Purchase/Sale Agreement and shall survive the closing. However, the PCDS does say it forms part contract if it is agreed in writing. This never occurred however the PCDS is attached to the Purchase/Sale Agreement and is required to be completed by the Vendor who is required to provide it to the Purchaser concurrent with the Purchaser's acceptance of the offer. As the statements in the PCDS come after the offer was made then any representations contained therein would not have effected the Claimant's decision to make an offer on the home. If the Statements in the PCDS are not mere representations then they would have to be considered warranties, conditions or covenants and the question becomes, if they are such, with respect to the furnace, well and floor do they survive the closing for if not they would have to be contained in or found in the deed. have no evidence of any deed and what is contained in the deed. The warranties, conditions or covenants would also survive the doctrine of merger if there was: 1. fraud, 2. mutual mistake resulting in total failure of consideration, or deficiency in the land conveyed amounting to an error in substantialus, 3.contractual condition or 4.warranty collateral to the contract, otherwise caveat emptor applies The Evidence before this Court 1. There was evidence that the basement suffered water problems which caused damage to the basement. The Claimant in her testimony said she noticed the flooding first when she ripped up substantial part of the basement and when layer of gyproc and wood paneling was ripped away. The Claimant said that" it was in black and white, there was seepage in the furnace room. The Claimant believed this to be mould. After purchasing the home the basement was gutted by the Claimant. The Claimant gave testimony that she discovered rot and mould behind the walls and the stairs showed signs of rot at the bottom where new wood was nailed onto the rotted wood. There was sufficient pictorial evidence showing signs of water damage to the inside walls and on the sub floor and stair stringers. The Claimants said the black and white stuff looked like mould but it was never tested to confirm it was mould. 2. There was evidence that the water problem in the basement was an on going problem. Wayne Tucker who had 17 years experience in doing renovations and who was employed to do work on the Claimant's basement told the court that "as we removed the panels [from the basement walls] we would find rot." In his view" there was long standing water and mold problems consistent with water over several years, eight to 10 years. Mr. Tucker stated the stairs were rotted and new lumber was attached to the rotten lumber of the stair stringers. In Mr. Tucker's view the rot could not have happened between the time the Claimant purchased the home and the time when he saw the stairs. Anthony Ledrew was neighbour on the north of the Claimant's home and had been neighbour for nine years. He said there was rainstorm in the past and he was told by the Defendant he had water in the furnace room area and he needed vacuum as the Defendant vacuum had burnt out. He said there was quite bit of rain at that time and my neighbour and were checking out the area as there was lot of rain in short time. He said he had no knowledge of the Defendant having any other water problems. The home inspector, Gregory Ryno said it took him 10 minutes to discover water had been in the basement when he went into the basement to do his inspection. In reviewing the pictures of the basement once it had been gutted he opined that the moisture damage occurred over long period of time Leon Eisner has franchise business with permacrete and has run the same for 18 years. He said the cracks in the foundation were not new and were in his view more than 15 years old. Mr. Eisner did not see the basement when the paneling and the walls were in place. Mr. Eisner stated "I would say there was water in their from time to time. would say if you were in the basement at all you would notice it" Another neighbor Mr. Grant Meder resided across the corner from the Claimant's property and had been living there since 1986. He said the property to the north side of the Defendant's property had water problems ongoing for 10 to 15 years and they put in trench. He also said the Defendant's daughter told him there were always water problems.[The statement was objected to by counsel on the basis of hearsay and will comment on hearsay both specifically and generally in my analysis] 3. There was evidence that the Defendants were aware cistern was located next to the foundation of the house. Roderick Macdonald live next door to the Claimant's home since 1968 and said he knew there was cistern behind the house which was more than 10 years old he said the Defendants moved into the house around 1990. Grant Meder said he was also aware of the cistern and the crew had dug it up and he spoke to the Defendant the day that was done. 4. Evidence that the cistern did not cause damage or leakage into the basement. Brent Keyes is residential builder and contractor and had been incorporated since 1988. In June of 2007 needed excavation to the bottom of the footings and he drilled holes in the cistern to allow water to escape. He told the court he did not see any damage from the cistern. 5. The Claimant was made aware of water problems in the basement. This PCDS was executed by the Defendants on February 5, 2006, and by the Claimant on September 9, 2006. The closing of the transaction occurred on September 29, 2006. The PCDS indicated under the Heading 'Structural' the following question was asked: "A. Are you aware of any structural problems, unrepaired damage or leakage in the foundation?" The response in the PCDS was "Yes." The PCDS indicated under the Heading "Additional Comments; "heavy rain can cause seepage in furnace room and city has repaired and replaced water piping post‑Juan. Seepage in furnace room believed to be caused by chimney base." The Claimant obtained the services of home inspector and part of the written inspection was submitted into evidence by the Defendants. Under the Heading Basement Area and Structure and beside the subheadings Floors and Walls the inspector wrote in the following comments: "some signs of water stains. Check with present owner if previous water in basement was problem" The home inspector Gregory Ryno, said the Claimant was with him when he did the home inspection for the Claimant. He told the court when he did the inspection he would have discussed with the Claimant the water stains and told her to check it out. He said there was mildew in the crawl space and he would have discussed this with the Claimant. The Claimant planned to do renovations to the basement and after "ripping up substantial part of the basement" she noticed flooding in the basement for the first time. Cracks in the foundation were discovered and mould was discovered or what appeared to be mould. Analysis The role of hearsay evidence in the small claims court is the first matter shall deal with in reference to testimony by one of the neighbours' that the daughter of the Defendant gave him information that there were always water problems. refer to two cases one from this court and one from the Supreme Court of Nova Scotia. Whalen v. Towle [2003] N.S.J. No. 528 [NSSCTD] In keeping with the Act's stated purpose of being informal, the hearsay rule is rendered inapplicable with the issues of relevancy and efficiency being the only barriers to the admission of evidence. refer to s. 28(1) of the Act which provides: (1) An adjudicator may admit as evidence at hearing, whether or not given or proven under oath or affirmation or admissible as evidence in court, (a) any oral testimony; and (b) any document or other thing, relevant to the subject‑matter of the proceedings and may act on such evidence, but the adjudicator may exclude anything unduly repetitious. (2) Nothing is admissible in evidence at hearing that (a) would be inadmissible in court by reason of any privilege under the law of evidence; or (b) is inadmissible by any statute. Lombard Insurance Co. v. Stock Transportation [2007] N.S.J. No. 540 [SCCNS] Counsel in his submissions stated the following: "The statement in question is clearly hearsay evidence and accordingly, would be admissible only under an exception to the hearsay rule. The Supreme Court of Canada has recently set out the guidelines for determining the admissibility of hearsay statement sunder the principled case‑by‑case exception to the hearsay rule based on necessity and reliability. In R. v. Khelawon (2006), 2006 SCC 57 (CanLII), 215 C.C.C. (3d) 161 (SCC) Justice Charon, J.J. rendered decision on the hearsay rule described as "tour de force" in the annotation. 11 The circumstances in Khelawon were similarly to those in the case at Bar, in that the issue was the admissibility of an unsworn but recorded statement of deceased witness. The witness was the alleged victim who gave videotaped statement to police that had been admitted into evidence by the trial judge. On appeal, the court found that the tapes should not have been admitted, stating that although the threshold test of necessity was met due to the death of the witness, the videotaped statement was not sufficiently trustworthy to meet the threshold of reliability. 12 On appeal to the Supreme Court of Canada, the decision of the Ontario Court of Appeal was upheld. Charon, J.J., speaking unanimously for the Court, stated that: 105 The fact remains however that the absence of any opportunity to cross‑examine Mr. Skupien has bearing on the question of reliability. The central concern arising from the hearsay nature of the evidence is the inability to test his allegations in the usual way. The evidence is not admissible unless there is sufficient substitute basis for testing the evidence or the contents of the statement are sufficiently trustworthy. 13 The Court went on to state that there were no adequate substitutes present, such as the availability of sworn transcript from another proceeding considering the same issues. The crown could only rely on the "inherent trustworthiness of the statement." In that regard Charon, J.J. stated that "the circumstances raised number of serious issues such that it would be impossible to say that the evidence was unlikely to change under cross examination." (para. 107) For those reasons, the statement was excluded from evidence."1 Admissibility of Deceased Person's Statement 14 "Section 28 of the Small Claims Court Act, R.S.N.S. 1989, c. 430 states that an adjudicator may admit as evidence at hearing, whether or not given under oath or affirmation or admissible as evidence in court, any oral testimony and any document or thing, subject to relevance, undue repetition, privilege and statutory restrictions. Therefore the Stock Defendants submit that the Adjudicator has the discretion to admit Wyatt's statement. The Court is not bound by the formal rules of evidence, including the rules relating to hearsay. 15 In Morris v. Cameron, 2006 NSSC (CanLII), [2006] N.S.J. No. 19 (S.C.), Justice LeBlanc, in considering an appeal from Small Claims Court decision, considered the application of the hearsay rule in the Small Claims Court contest, specifically, whether the principles of hearsay are relevant when documents are produced in Small Claims Court proceeding. (para. 24) 16 The Court stated that 'the principled approach must apply, in relaxed form, in order to determine whether hearsay evidence that party seeks to adduce before an adjudicator meets the threshold requirement of reliability, and whether it is necessary to admit the evidence in order to prove fact in issue.' (para. 24) 17 In the Morris decision, Justice LeBlanc stated as follows: 'Hearsay evidence will continue to be admissible in most cases. An analysis of necessity and reliability will only be required where the evidence, on its face, does not appear to meet these basic requirements.' The weight to be given to hearsay evidence is in the Adjudicator's discretion to determine.2" The statement made by the daughter that "there were always water problems" is admissible. However the statement in and of itself is not of great assistance. Was the daughter referring to small amount of water in one area of the basement? Was the daughter referring to water over the entire basement? Was the daughter referring to water that they could hear leaking into the basement? There is no exact determination on what the daughter meant by such statement. Therefore while the statement is admissible for purposes of this Court, the indefiniteness of the statement does not allow me to place much weight and thereby concluding that the Defendants knew there were water problems to the extent that was revealed once the interior walls and flooring were removed. The Claimant planned to do renovations to the basement and after "ripping up substantial part of the basement" she noticed flooding in the basement for the first time. Cracks in the foundation were discovered and mould was discovered or what appeared to be mould. In this particular case the Claimant had notification both in the PCDS and from the home inspector that there were leakage problems in the basement and further the inspection report said she should make inquiries. The Claimant said she accepted the PCDS at face value and she interpreted it to mean the problem was around the chimney. Once the walls and floor were removed there was indication of leakage and mould. There was no clear evidence when leakage occurred and how much and there was no sign of what was found until after the walls were removed. There was no evidence from any of the witnesses that the Defendants knew of water leakage to the extent that was seen once the walls and floor were removed. The Claimant suggests that the Defendants must have known, however there is no evidence that draws that conclusion prior to the walls and floor being removed except for what the PCDS disclosed. There certainly was some water signs however not to the extent that was seen when the walls and floor were removed. The Claimant has stated in correspondence to the court that she is not on level playing field when lawyers are involved, which is the case here. The Claimant made the following statement which referred to earlier; "I was shocked that the case could be dismissed before both sides have testified. If that happens do not get chance to cross‑examine the Defendants or their witnesses." The Defendant is not obligated to give any testimony or provide any evidence whatsoever. The burden of proving the claim pursuant to the civil standard being on balance of probability lies with the Claimant. It is role of the plaintiff or Claimant to bring forth facts that will allow the Trier of facts to take those facts in conjunction with the law that exists to determine whether the Claimant has valid claim against the Defendant. If at the end of the day there is no claim in law the Defendant has no obligation to anyone. If there is valid claim, then the Defendant must step up to the plate as there may in fact be defence at which point the Defendant can raise same, through testimony and evidence provided by the Defendant or their witnesses. In this case the Defendants have decided and taken the position that there is no case against them. My job as an adjudicator is to determine if there is prima facie case against the Defendants. must do this pursuant to the law that have outlined above with the understanding that the Claimant's case has been completed and there may in fact be no more evidence put forward. At the end of the day have evidence that the cracks in the wall, the mould if that's what it was and the rotten wood were not visible. In other words it was latent defect. What evidence is there that this was visible to the defendants during the time they occupied the home? What evidence is there that there was continual leakage in the basement of which the defendants were aware? What evidence do have the defendants did repairs to the home during their occupancy to cover up wood rot? The short answer is there is none. If there was on the other hand leakage in the basement, then did the defendants fail to disclose same or skirt around the issue in some way. The defendants completed PC DS which provided representation that they were aware of structural problems, unrepaired damage or leakage to the basement. In addition the PC DS stated that there was leakage in the furnace room. This goes beyond the situation outlined by Justice Wells of the Court of Appeal in Newfoundland which was referred to earlier. There is no implied warranty that the defendants did not have any water penetration problems or that the Claimant would never have any water penetration problems. In fact there is no evidence of non-disclosure and in the case at bar, the opposite is the case. Even if there was no acknowledgment of any leakage whatsoever in the PC DS, the disclosure statement highlights that the information contained in it as provided by the seller is believed to be accurate, however it may in fact be incorrect. It states that it is the responsibility of the buyer to verify the accuracy of the information in the PC DS. In this case the Claimant made no inquiry about the statement made by the Defendants of structural problems or unrepaired damage or leakage in the foundation. To conclude there is no evidence of misrepresentation There is evidence that the Defendants were aware that there was cistern and did not disclose this to the Claimant but there is no evidence to conclude that the cistern was causing problem. There is no warranty, collateral or otherwise, in this agreement that provides the Claimant comfort that there was no leakage, or would be no leakage. For all these reasons the motion will succeed and the claim against the Defendants fails. Dated at Halifax, this 20 day of March, 2008. David T.R. Parker Small Claims Court Adjudicator

The claimant purchaser brought an action for breach of contract and negligent misrepresentation, claiming that although the defendant vendors had advised her that there had been some damage to the chimney base in the residence, she had been told that this was a minor problem which was under repair and she had not been properly advised of a history of repeated flooding. Following the purchase of the property, the claimant had commenced renovations and discovered extensive mould or rot throughout the basement, to such an extent that the entire basement had to be gutted, disinfected and rebuilt. She also claimed that a buried cistern was discovered in the backyard, which had been partly filled with earth but still filled up with rainwater and melted snow, and that the water had nowhere else to go but against the foundation. When the defendants brought a motion for non-suit at the conclusion of her case, the unrepresented claimant expressed surprise and dismay that her case could be dismissed before both sides had testified as she expected her remaining evidence to come out through the defendants' testimony. Motion granted; the claim against the defendants is dismissed; it is the responsibility of the buyer to verify the accuracy of the Property Condition Disclosure Statement (PCDS) and, in this case, the claimant had made no inquiry as to the statements made by the defendants of structural problems or unrepaired damage or leakage in the foundation. The claimant had notification, both in the PCDS and from her home inspector, that there were leakage problems in the basement and the inspection report had advised her of the need to make further enquiries. There was no evidence the latent defects (the cracks in the wall, the mould and the rotten wood) were visible to the defendants when they occupied the home, that there was continual leakage of which the defendants were aware or that the defendants had performed any repairs to the home during their occupancy to cover up the wood rot. Although there was evidence that the defendants were aware of the cistern and had not disclosed this to the claimant, there was no evidence to conclude that the cistern was causing the problem.

2_2008nssm16.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 90 Date: 20110727 Between: Docket: CACV2120 Shirley Wanda Sinclair Appellant (Respondent) and Douglas Edward Webb Respondent (Applicant) Before: Vancise J.A. (in Chambers) Counsel: Shirley Wanda Sinclair appearing on her own behalf Davin Burlingham for the Respondent (Applicant) Application: From: Q.B. No. 552 of 2011, J.C. Saskatoon Heard: July 27, 2011 (orally) Disposition: Adjourned sine die Written Reasons: July 28, 2011 By: The Honourable Mr. Justice Vancise Vancise J.A. [1] Douglas Edward Webb obtained an order for possession pursuant to s. 3(3) of The Recovery of Possession of Land Act, R.S.S. 1978, c. R-7 granting possession of land and premises described as 1615 Broadway Avenue, Saskatoon, Saskatchewan. The proposed appellant Shirley Wanda Sinclair did not appear on that application and the order was made in her absence. [2] Ms. Sinclair filed Notice of Appeal alleging certain facts with respect to why the order ought not to have been made. [3] Mr. Webb applied pursuant to Rule 46.1(1) of the Court of Appeal Rules to quash the Notice of Appeal on the basis that the Notice of Appeal was entirely without merit by reason that there was evidence before the Court and no factual basis on which the appeal could have been brought, heard and disposed of. [4] Rather than filing a Notice of Appeal, Ms. Sinclair should have pursued a remedy in the Court of Queen’s Bench. The proper procedure for Ms. Sinclair to have followed was to return to the Court of Queen’s Bench and to apply pursuant to Rule 271 of the Queen’s Bench Rules to have the matter opened up and disposed of on the basis of evidence. [5] The application under Rule 46.1(1) to quash must proceed in two stages in as much as single judge cannot quash an appeal pursuant to that Rule. [6] In the circumstances, this matter is adjourned sine die with leave to bring the matter back before me on five days notice should the proposed appellant Ms. Sinclair be unsuccessful in the Court of Queen’s Bench. [7] There will be no order as to costs.

The respondent applied to quash the Notice of Appeal on the basis that the appeal was entirely without merit because there was no factual basis on which the appeal could have been brought, heard and disposed of. HELD: Rather than filing an appeal, the respondent should have pursued a remedy in Queen's Bench. The proper procedure would have been to apply under Queen's Bench Rule 271 to have the matter opened up and disposed of on the basis of the evidence. The matter was adjourned sine die with leave to bring the matter back to Court if the appellant is unsuccessful at Queen's Bench.

d_2011skca90.txt

J.D. Koch IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 149 Date: November 8, 2010 Information: 24414281 (Mayer) 24417999 (Dagenais) Location: Prince Albert Between: Her Majesty the Queen and Jeremy Angelo Mayer Aimee Lynn Dagenais Appearing: M. Longworth For the Crown M. Simonot, Q.C. For the Accused JUDGMENT S. C. CARTER, I. THE CHARGES [1] Jeremy Angelo Mayer (Mayer) and Aimee Lynn Dagenais (Dagenais) are charged on separate informations with assaulting Jared McIntyre contrary to s. 266 of the Criminal Code. Mayer is also charged with wilfully damaging the windows of car contrary to s. 430(4) of the Criminal Code. II. TRIAL PROCEDURE [2] Marcel Simonot, Q.C. represented both accused. He agreed that, because the charges all arose out of the same incident, the Crown and defence would be allowed to call all of their evidence at the trial on one information which would all be applied over to the other information. The Court agreed with this procedure. The trial then proceeded on information 24414281. At the close of the trial the Crown and defence evidence was applied over to and became the evidence on information 24417999. III. CROWN EVIDENCE a) Jared McIntyre [3] The complainant, Jared McIntyre (McIntyre), testified that on April 4, 2010, at approximately midnight, he and his girlfriend’s brother, Mitchell Corfmat, drove from the Driftwood Trailer Park just outside Prince Albert, Saskatchewan to Rockcees Nightclub on Second Avenue West in Prince Albert, Saskatchewan. McIntyre had purchased some cocaine for person named Kenny Bear whom he was going to meet in the area of the nightclub. [4] Rockcees Nightclub is situated at the northeast corner of small strip mall which runs east and west on the west side of Second Avenue West in Prince Albert. McIntyre was driving his mother’s Ford Escort station wagon. He was coming from the south and turned across the southbound lanes of Second Avenue to enter the strip mall parking area at the southeast corner. At this point there is coffee shop called Turks. McIntyre testified that this is where he met Kenny Bear in order to hand over the cocaine. [5] McIntyre testified that he then drove west to the end of the strip mall and around the building and, now driving in an easterly direction, drove slowly past the doors of Rockcees. There were people outside smoking. He didn’t want to hit them and was thus driving slowly. He testified that he saw and heard Mayer and Dagenais fighting. Dagenais was waving her arms around and screaming just outside the doors to Rockcees. moment later his rear window was smashed in. He stopped the car and at that moment his front passenger’s side window was smashed in. He testified that both of these things were done by Mayer whom he recognized and whom he has known from high school. When Mayer smashed the passenger window his foot also connected with the right side of Mitchell Corfmat’s face. [6] He then drove away onto Second Avenue and back to his home at the trailer park. Once back home he told his girlfriend, Brittany Graham, what had occurred. Moments later both of the accused arrived in car. When McIntyre went to the door to have look he testified that Dagenais was doing more damage to the car and Mayer was rushing up the stairs toward the trailer. [7] McIntyre testified that Mayer was at the top of the stairs. He said he felt threatened and as Mayer got closer, he swung at Mayer hitting him at which point they both fell off the stairs and onto the ground. His recollection from this point on was not the best. He recalled being choked by Dagenais and that Mayer was on top of him punching him. He testified that he managed to get out from under all this, got kicked in the head couple of times and stumbled back into the trailer. [8] McIntyre testified that he had no idea why Mayer broke the windows and came at him at the trailer as he did. He recalled confrontation at Emma Lake in the summer. In cross-examination he said it was probably product of jealousy because he and Dagenais used to date each other. He said that he threw the first punch because he felt that he, his family and his home were being threatened by Mayer. He said in his testimony: “He (Mayer) had already kicked out the windows of my car, I’m pretty sure he wasn’t coming to apologize”. [9] In cross-examination he denied taking $100.00 from Mayer through the open passenger window and then closing the window and driving off. He said that his girlfriend didn’t hit Mayer with two by four. b) Mitchell Corfmat [10] Mitchell Corfmat (Corfmat) is the brother of Brittany Graham. He accompanied McIntyre to Rockcees. His recollection was clouded by having consumed bit less than case of twelve beer between 5:00 p.m. and 10:30 p.m. which is the time that he went over to his sister’s trailer. His recollection was that Kenny Bear was actually with them at the trailer and that they drove to Rockcees in order to drop Kenny Bear off. He recalled that Bear got out of the car at the west end of the strip mall. [11] Corfmat testified that as McIntyre drove slowly by Rockcees Mayer jumped off the sidewalk and kicked in the front passenger window. He recognized Mayer because he saw his face and knows one of Mayer’s siblings and had seen him before. He said that McIntyre wanted to stop and confront Mayer and Corfmat urged him to just get going. He could already see blood from the cuts on his face. As McIntyre drove away Corfmat testified that the rear window of the car was smashed in. Corfmat did not see who did this. [12] Once back at the trailer Corfmat went into the washroom in order to clean his cuts and get the glass off his face and out of his hair. As he was doing this he heard screaming from the outside. He went to the trailer’s door. He saw Mayer on top of McIntyre with Dagenais choking him from behind. He yelled at his sister to push Mayer off McIntyre. She told him to call his father. McIntyre got loose and then he and Mayer were standing up and punching each other. Neither McIntyre, nor his sister, had any objects in their hands. c) Brittany Graham [13] Brittany Graham (Graham) is McIntyre’s girlfriend and Corfmat’s sister. She testified that when McIntyre got back from Rockcees she was told of the damage that had been done to the car. She went to the trailer door to have look and found that the accused were already outside. She said she saw Dagenais trying to break the back passenger window. As she was watching this McIntyre came to the door. She went off to the washroom to tell her brother what was happening. When she came back McIntyre and Mayer were on the ground. Mayer was on top of McIntyre. Dagenais was behind them. She saw lots of punches and kicks by all three. She went down to try to break them up. She saw Dagenais kick McIntyre in the head. She testified that Dagenais told her that they were doing this because Jared had “fucked my sister”. She remembered Dagenais yelling at McIntyre saying that she had told him (McIntyre) that her boyfriend was stronger than him. Graham recalled putting Mayer in headlock in order to keep him around until the police arrived. She testified that Mayer got loose, picked up two by four and headed toward the house. Presumably Mayer thought better of it because there is no evidence of what happened next and defence counsel did not cross-examine on this point. IV. DEFENCE EVIDENCE a) Aimee Lynn Dagenais [14] Aimee Lynn Dagenais (Dagenais) testified that she, Mayer and Kenny Bear were having few beers at Mayer’s new autobody shop which he had just recently opened. They each had four beer and then went over to her place in order to get ready to go to Rockcees. They went to the bar at around 10:00 p.m. She had three more beer. Shortly after midnight she went outside for some reason and saw Mayer lying on the surface of the parking lot. She and Mayer then immediately hopped into her car and drove off to “Jared and Brittany’s trailer”. At the trailer she got out of the car as did Mayer. Mayer wanted his money back and was walking toward the trailer. Jared was on top of the stairs. She said that the two men rushed at each other. Jared swung at Mayer. Mayer fell to the ground on his back. Jared jumped on top of Mayer. Mayer flipped McIntyre over and got on top and then began “feeding him shots left and right”. She recalled Brittany being on the top of the steps yelling and screaming. She testified that Brittany grabbed two by four and hit Mayer in the back of the head with it. She said that McIntyre then grabbed the two by four from Brittany and hit Mayer three times in the face with the two by four. Throughout all of this she testified that all she did was watch until she heard that the cops were coming. At this point she said that she went behind Mayer and tried to pull him off to get them away from the scene. b) Jeremy Angelo Mayer [15] Jeremy Angelo Mayer (Mayer) testified as well. He evidence was much the same as Dagenais’. He said that he was outside the bar when McIntyre crept up in the car. The passenger window rolled down and McIntyre asked him if he wanted to buy gram of cocaine for $100.00. Mayer testified that he gave McIntyre the $100.00 through the open window. The car was then put in gear. Corfmat rolled up the window and the car began to drive off. Mayer then said he kicked in the passenger side window falling to the ground in the process. He got up as Dagenais was running out of the bar door. They got into her car and drove after McIntyre. [16] Once at the trailer Mayer said that he ran up the steps asking for his money back. McIntyre refused, swung at and hit him and he fell off the stairs. He then described the fight in much the same way as Dagenais did. He recalled at some point waking up and assumed that someone must have hit him because the last he remembered he was on top of McIntyre punching him. He said he saw McIntyre with two by four in his hands. McIntyre hit him three times in the face. [17] In cross-examination Mayer said that when he rushed up the stairs toward McIntyre he was not angry. He just wanted his money back. He confirmed Dagenais’ testimony to the effect that she just watched and did nothing. [18] Both the Crown and the defence filed photographs of the injured parties. The three photographs of McIntyre show injuries consistent with fistfight bloodied swollen lips, bruising around the right eye and other contusions and abrasions. The photograph of Corfmat shows cuts along the right eye of his face from his cheekbone to his hairline. The three photographs of Mayer are close ups. One is photo of his lower chin, where stitches have been applied to cut. One is of his right ear and shows some reddening to the ear itself. The third is photograph of his right eyebrow showing stitches to cut in that area. [19] The defence also filed report from Dr. N. DeBeer who examined Mayer later in the day on April 4, 2010. The doctor’s examination revealed that Mayer had the following injuries: two centimetre laceration to his right eyebrow; two wounds on his chin; two centimetre diameter horizontal bruise and three centimetre post neck bruise on his scalp. The report notes “no other injuries except as described above”. V. ANALYSIS [20] Whether the physical altercation in this case was precipitated by jealousy or by a drug deal gone bad, there is no doubt that Mayer was the aggressor throughout. He smashed in one, if not two, car windows. He chased after McIntyre with Dagenais’ help. Once at the trailer he rushed up the stairs toward McIntyre. This was threatening behaviour and I believe McIntyre when he said that he felt threatened. As McIntyre said in his testimony, Mayer was not there to apologize. [21] Section 37 of the Criminal Code states: (1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. (2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent. [22] In my view s. 37 applies to the actions taken by McIntyre. The actions of Mayer and Dagenais were aggressive. McIntyre took necessary and lawful action to protect himself and his family. [23] do not believe that either McIntyre or Graham used two by four to hit Mayer. In my view Mayer’s injuries would have been far more severe if this had actually happened. However, even if it did occur, the furious struggle between Mayer and McIntyre, aided by Dagenais, would have justified the use of such weapon. Its use as described would not have been unnecessary force. [24] With respect to each accused, Mayer admits to fighting with McIntyre. Dagenais testified that all she did was watch as Mayer and McIntyre fought, only getting involved when she pulled Mayer away upon hearing that the police had been called. McIntyre says that Dagenais choked him. Graham and Corfmat confirmed this in their testimony. Mayer and Dagenais had been drinking that evening. There is no evidence that McIntyre and Graham were under the influence of any substance, and for that reason accept their testimony as to the involvement of Dagenais in the altercation. DECISION [25] I find both the accused guilty of assault upon McIntyre contrary to s. 266 of the Criminal Code. Mayer was clearly the main aggressor. He attacked McIntyre and punched and kicked him until Dagenais convinced him to leave. Dagenais choked McIntyre at one point during the fight. [26] With respect to the count of wilful damage to the car windows, Mayer certainly admitted to breaking the front passenger window, and he probably broke the rear window. However, the Crown was unable to prove that the cost of repairing the windows was under $5,000.00. There was no evidence whatsoever as to what the cost of repair was. There being no evidence of an essential element of the offence, I find Mayer not guilty of the second count on information 24414281. [27] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 8th day of November, 2010. S. C. Carter,

The accused were both charged with assault contrary to s. 266. The complainant admitted that he threw the first punch but said that he did so because the male accused had already broken the windows in his car and punched his passenger and was not 'coming to apologize.' HELD: The accused were convicted of assault. Whether the physical altercation was precipitated by jealousy or a drug deal, there is no doubt that the accused was the aggressor throughout. He smashed one, if not two, car windows. The accused's behaviour was threatening and the Court accepted that the accused had not attended the house to apologize. The complainant took necessary and lawful action to protect himself and his family under s. 37 of the Criminal Code. While the Court did not believe that either complainant used a weapon, if it did occur it would have been justified in the context of the assault. The accused was acquitted of mischief because the Crown failed to prove the value of the broken windows.

2_2010skpc149.txt

REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 136 Date: 2016 04 22 Docket: FLD of 2016 Judicial Centre: Moose Jaw Counsel: W. Timothy Stodalka for the petitioner Estes B. Fonkalsrud for the respondent JUDGMENT BALL J. APRIL 22, 2016 [1] The parties have four children: T., born …, 2002; K., born …, 2004; and twins B. and M., born …, 2007. They first separated in July 2010. Since then they have had ongoing disputes about variety of matters including, but not limited to, the parenting of their children and the division of family property. There have been variety of applications to the court, court orders, and unsuccessful pre-trial settlement conferences. [2] This application raises, once again, the question of parenting plan for the children. History of Proceedings [3] Three days after the parties separated, the petitioner commenced these proceedings by way of Petition seeking orders under The Family Maintenance Act, 1997, SS 1997, F-6.2, The Children’s Law Act, 1997, SS 1997, C-8.2, and The Family Property Act, SS 1997, F-6.3. The Petition did not contain claim under the Divorce Act, RSC 1985, (2d Supp), and has never been amended to include such claim. Concurrently with the filing of the Petition, the petitioner applied for interim orders dealing with, inter alia, the parenting of the children, child and spousal support, exclusive possession of the family home, and division of family property. Order dated September 28, 2010 (Dawson J.) [4] On September 28, 2010, Dawson J. issued fiat addressing some of the issues in dispute. In doing so, she observed that “this file is an example of how quickly matters can escalate between two parties when cooler heads fail to prevail”. Her first order of business was to direct that an expedited pre-trial be set for October 29, 2010, stating that it was not to be adjourned without the consent of both parties or an order of the court. [5] Dawson J. then made an interim order as follows: 1. The petitioner and respondent shall have interim joint custody of the children of the marriage. 2. The children’s primary interim residence shall be with the petitioner. The respondent shall have interim access at reasonable times as may be arranged for through counsel, such access to be no less than every second weekend from Friday evening to Sunday evening and one evening every week from 5:00 o’clock p.m. until 7:30 p.m. 3. The petitioner shall have interim exclusive possession of the family home located at […] Moose Jaw, Saskatchewan and the household goods contained therein until further order. The respondent is prohibited from entering the said home until further order. The petitioner and respondent shall each immediately register in the Parenting After Separation Course and each shall immediately file Certificate of Registration with respect to the same. Thereafter each shall attend and complete the course and file Certificate of Completion. Immediately after that both the petitioner and respondent shall register in, attend and complete the High Conflict Parenting Course and file with the court Certificate of Completion. [6] Certificates of Completion at the Parenting After Separation and Divorce Program were filed by both the petitioner and the respondent on September 29, 2010. No Certificates of Completion with respect to the High Conflict Parenting course have ever been filed by either party. Pre-Trial Conference (October 29, 2010) [7] Pursuant to the order of Dawson J., an expedited pre-trial conference was convened by McIntyre J. on October 29, 2010. The result was the negotiation of 13 paragraph Memorandum of Understanding dated October 29, 2010. Twelve of the 13 paragraphs dealt with property matters. The only reference to the parenting of the children was found in paragraph 12, which stated: 12. Pending the reconvening of the December pretrial, the father will have the following parenting time: without prejudice: After school on Friday, November to 7:00 P.M. on Sunday, November 7, 2010 Wednesday November 3, 24 and December 1, 2010 from after school until 7:00 P.M. If the two oldest girls do not have to go to school on November 19, 2010 from November 18, 2010 after school (otherwise on November 19, 2010 from after school) to November 21, 2010 at 7:00 P.M. [8] No formal order was ever issued in respect of any provisions of the Memorandum of Understanding, including para. 12 as it related to the respondent’s parenting of the children on specified days in November 2010. [9] On November 9, 2010, McIntyre J. approved consent order granting the respondent exclusive possession of home located at Buffalo Pound Lake. Reconciliation of the Parties [10] Although the pre-trial conference held on October 29, 2010 was adjourned on the understanding that it would resume on December 3, 2010 to address unresolved issues related to the parenting of the children, that never happened. Instead, on November 10, 2010, the parties reconciled and the pre-trial conference scheduled for December 3, 2010 was cancelled. The parties resumed cohabitation for approximately two years. They separated again on October 11, 2012 with the respondent moving to the home at Buffalo Pound Lake. Order dated November 22, 2012 (Kraus J.) [11] On August 13, 2012 (i.e. two months before the parties separated), the petitioner filed an application for an order “enforcing the interim custody order of Dawson J. of September 28, 2010”. That application was then adjourned sine die to be brought back on seven days’ notice to the respondent. [12] Following their separation in October 2012, the petitioner’s application was brought back and heard by Kraus J., who issued the following fiat dated November 22, 2012: The interim order made September 28, 2010 granted joint custody to the parents of their four (4) children, age 10, and (the twins), with primary residence to the mother, access to the father at reasonable times, no less than every second weekend from Friday evening to Sunday evening, and one evening every week from 5:00 until 7:00 p.m. Following the interim order, the parents proceeded to pre-trial conference on October 29, 2010 where they entered into Memorandum of Understanding, confirming the father’s access on the weekend following the pre-trial conference but somewhat changing weekday access. Subsequent to the pre-trial conference, the parties reconciled and resumed cohabitation on November 10, 2010, staying together and working on their marriage until October 11, 2012 when they separated once again. Hopefully, the parents will reconcile once more. In any event, each parent is loving and capable of meeting all of the needs of the children and they are capable of working out long term parenting plan in the best interests of their children with assistance of counsel or at pre-trial conference. In the short term, on an interim basis only, to ensure stability in the lives of the children in their best interests, the interim parenting order of September 28, 2010, (as modified by the parents in their Memorandum of Understanding), shall remain in effect. [13] Although the Kraus J. order dated November 22, 2012 stated that the interim parenting order of September 28, 2010 had been modified by the parents in their Memorandum of Understanding, as we have seen that Memorandum of Understanding dealt only with specific dates in November 2010 and was entered into on the basis that further pre-trial conference would be held to revise the parenting plan on December 3, 2010. Instead, the parties had reconciled, thereby rendering the Memorandum of Understanding irrelevant to the ongoing parenting arrangements. Additional Pre-Trial Conferences (Schwann J.) [14] The parties continued to engage in their disputes related to the division of family property. After additional applications to the court, pre-trial conferences were convened by Schwann J. on December 20, 2013, February 21, 2014 and March 7, 2014. No settlement was achieved. The property issues remain unresolved and trial dates have not yet been set. [15] Before and after the pre-trial conferences, the parenting arrangements for the children changed substantially. Since December 2012 the petitioner and the respondent have had equal parenting time with all four children during holidays including Christmas, Easter and summer vacation. Commencing immediately after the pre-trial conference convened by Schwann J. in December 2013, the petitioner and the respondent began parenting the children based on two week rotation: in week one, the respondent parented all four children from Thursday after school until Monday morning (extended until Tuesday on long weekends); in week two, he parented all four children from Thursday after school overnight until Friday morning. All holidays continue to be shared equally. [16] T.’s primary residence has been with the respondent since mid-December 2014, period of one and one-half years. She spends every other weekend and, generally, from Friday evening to Monday morning, plus three Wednesday overnights each month, with the petitioner. T. was 12 when she went to reside with the respondent. She will turn 14 next month. [17] On December 14, 2015 K. began residing with the respondent. The event that resulted in that move is described in the petitioner’s affidavit as follows: 22. Our second daughter, [K.] is 11 years of age. 23. On Monday, December 14, 2015, the three youngest girls came home from school. 24. The twins were upset and they wanted to talk to me in private. The three of us went into my upstairs bedroom. They told me at some length about how [K.] and their older sister’s school friends were picking on them. The older girls were insulting and teasing the younger girls. 25. talked to the twins for about ten minutes. 26. After finished talking to them, walked out of the bedroom and discovered that [K.] was standing outside of the master bedroom door listening to my private conversation with her sisters. told [K.] “How dare you listen to our private conversation! You would be really upset if the twins overheard my private conversations with you.” She said nothing in response but her smirk confirmed that she did not care at all about the fact that she had been acting improperly. 28. intended to spank her bum but because of where she was standing, was unable to do this. As result, with an open hand, hit her right arm once. It was not hard hit in any sense of the word. It was designed for discipline purposes only. 29. [K.] did not cry or say anything to me after hit her arm. She was not bruised. [18] The respondent disputes those statements. His affidavit states that K. called him after the argument with the petitioner, that she was “crying and hysterical”, and that she had red bruise on her arm. [19] Whether or not K. was hysterical and/or injured, it is clear that since December 2015 she has primarily resided with the respondent while spending every other weekend with the petitioner from Friday after school to Monday mornings, (extended for school holidays) and overnight (most) Wednesdays. [20] All four children stayed with the petitioner during the Christmas school holiday from December 18 to December 28 and with the respondent for the remaining portion of the holiday (December 28 to January 4). In March 2016 the four children spent the first half of the Easter break with the respondent and the second half of the Easter break with the petitioner. The Current Application [21] On March 28, 2016 the petitioner applied for and received an order abridging the time for the hearing OF this application, which seeks the following order: 1. An order pursuant to s. 23(1)(a) and (e) of The Children’s Law Act and/or the order of Kraus J. of November 22, 20112 [sic] that during the school year the following children, namely:[T. S.] DOB May 30, 2002[K. S.] DOB September 24, 2004[B. S.] DOB January 12, 2007[M. S.] DOB January 12, 2007shall continue to have their interim primary residence with the Petitioner. The Respondent’s specified interim parenting time will be on Wednesdays from 3:20 until 7:00 PM and then alternating weekends starting on Friday April 15, 2016 at 12:20 PM as school ends at 12 noon until Sunday at 7:00 PM. [22] In addition to the order requested in para. of the application, the petitioner has also applied for the following: 2. An order prohibiting the Respondent or any one on his behalf from picking up the children at […] School, […]., Moose Jaw, Saskatchewan, except on his parenting time particularized in paragraph of this Notice of Application; 3. An order determining that the Petitioner shall have the sole interim decision making authority with respect to the said children’s education, including without limiting the generality of the foregoing when they are entitled to go on the […] School and/or […] School Division School Bus; 4. An order allowing the Petitioner interim telephone access while the children are with the Respondent; 5. An order requiring the Respondent to post $5,000 bond in order to insure his compliance with the interim custody order; 6. An order authorizing the Moose Jaw City Police and/or the RCMP to locate and apprehend and deliver the said children to the Petitioner for the purpose of giving the Petitioner interim custody and insuring compliance with the Court Order; 7. An order amending the Style of Cause by changing the Petitioner’s surname from “[S.]” to “[H.]”; 8. An order requiring the Respondent to attend the Parenting After Separation Course and/or High Conflict Parenting Course; and 9. Costs of this application on solicitor/client basis. [23] The petitioner’s application is made on the following grounds: 10. As detailed in the Petitioner’s affidavit of March 27, 2016, the children have had their primary residence with the Petitioner since the separation and/or the said court orders. However, the Respondent has engaged in parental alienation. He is actively encouraging the children to refuse to comply with the court order and follow the Petitioner’s lawful parenting instructions. The […] School has requested directions from the parents as to who has the right to make busing decisions with respect to the children; 12. To the best of her knowledge, the Respondent has never taken the Parenting After Separation Course. The Petitioner has taken both the Parenting After Separation Course and the High Conflict Parenting Course; and 13. The Respondent is currently $8,100 in arrears of child support. [24] The petitioner’s application discloses little about the parenting arrangements in place for the children over the past approximately three and one-half years. It remains unclear why it was filed when it was or why the petitioner applied to have it heard on an urgent basis. However, some explanation may be found in the petitioner’s affidavit supporting evidence, which expresses her belief that the respondent was attempting to influence the twins, B. and M., (now years old) to reside with him. Her affidavit states that the respondent went to pick up the twins after school on Monday, March 21 (it was not his parenting time) and that the twins then refused to go with the petitioner. That same day, the respondent sent her text message which stated, in part: In regards to your previous text about Easter Break, that should work out just fine. The twins have also requested that they want week on, week off going forward with parenting as you had mentioned to them. That’s the best and what would be fair for the girls. So let’s go ahead and do that for the twins following the Easter Break. Therefore, seeing as will have them for the last half of the Easter Break, let me know if you want the first week or the second week after. Monday to Monday, This is the best for the twins. If you don’t reply, will go ahead and plan to have them for the first week after the break. [25] second text was sent by the respondent to the petitioner on March 24, 2016, which stated: The kids wanted to come with us for the first half instead of the second half of the holidays. So as mentioned earlier without response from you to talk about it, you can pick them up Tuesday at supper time at the lake. [26] The respondent’s reply affidavit asserts that the twins do not wish to reside with the petitioner because of her overly aggressive approach to discipline. His affidavit states in part: 30. [B.], [M.] and [K.] have all indicated that their Mother has used physical discipline by striking them. Attached and marked as Exhibit “A” is photo showing what appears to be hand print on [B.]’s upper thigh. [T.] took the picture and sent copy to me. have attempted to address with the Petitioner the fact that the children are concerned about her outbursts of anger and it appears to be why they are wanting to spend more time at my residence. [27] In reply to that, the petitioner’s affidavit states: [30] do not recall bruising [M.]’s thigh. However, will admit that the twins are sometimes exceedingly difficult to parent and/or discipline. On occasion, you have to ask them five times to do simple things like brush their teeth, pick up their clothes and get their bags ready for school. When have used physical discipline on the girls, have never attempted to hurt them but rather was forced to do this in order to get their attention. 10. have no criminal record. The suggestion that engage in repeated physical abuse of the four girls is absolutely wrong. do not have an anger management problem. [28] As noted, this application was filed on March 28, 2016. As result of the order abridging the time for hearing, it was heard in chambers on April 4, 2016. [29] At the time of the hearing, the primary residence of B. and M. remained with the petitioner, and the respondent’s parenting time has remained as it has been since December 2012. Through counsel, the respondent assured the court he does not intend to unilaterally attempt to change that parenting schedule. Positions of the parties [30] Counsel for the petitioner submits that the court should confine the respondent’s parenting of the children to the times set out in the application because the four siblings should remain together. He asks the court to infer from the affidavit evidence that the respondent has been attempting to “alienate” the children, and that the court should therefore make an order specifying that his parenting times with them are to be the times set out in the petitioner’s application. He did not explain why the current parenting plan had not been clearly disclosed in the petitioner’s application or her initial supporting affidavit. Although T. is now almost 14, counsel for the petitioner opposes an order that her wishes be ascertained by way of Voices of the Child Report. [31] Counsel for the respondent takes the position that the parenting arrangements in place for the children represent the status quo, and that they are the result of an agreement reached between the parties. He acknowledges that the petitioner’s application was apparently brought because of her concerns that the respondent is attempting to “alienate” the twins, but states that there is no evidence to support her belief. He notes that the twins’ primary residence remains, and will continue to remain, with the petitioner. Analysis [32] On its face, the petitioner’s application seeks orders “pursuant to ss. 23(1)(a) and (e) of The Children’s Law Act and/or the order of Kraus J. of November 22, 20112 [sic]”. Subsections 23(1)(a) and (e) of The Children’s Law Act, 1997 state: Order restraining harassment 23(1) On application pursuant to this subsection, court may make an interim or final order restraining person from: (a) molesting the applicant or child in the lawful care or custody of the applicant; (e) otherwise interfering with the applicant or child in the lawful care or custody of the applicant. [33] Paragraph of the petitioner’s application asks the court to enforce an order “…that during the school year [all four children] shall continue to have their interim primary residence with the Petitioner. The Respondent’s specified interim parenting time will be on Wednesdays from 3:20 until 7:00 PM and then alternating weekends starting on Friday April 15, 2016 at 12:20 PM as school ends at 12 noon until Sunday at 7:00 PM.” [34] Paragraph 10 of the application states: 10. As detailed in the Petitioner’s affidavit of March 27, 2016, the children have had their primary residence with the Petitioner since the separation and/or the said court orders. However, the Respondent has engaged in parental alienation. [35] To obtain the order she seeks, the petitioner must demonstrate that the primary residence of all four children is with her and that they are in her lawful custody or care except as set out in para. of her application, i.e. except for Wednesdays from 3:20 p.m. to 7:00 p.m.; and alternating weekends from Friday at 12:20 p.m. until Sunday at 7:00 p.m. [36] It is apparent from the petitioner’s own evidence that this has not been the reality for the last three and one-half years with respect to equal parenting time during major holidays; for the past two and one-half years with respect to alternating weekends and weekday overnights; for the past one and one-half years with respect to the primary residence of T., and the past four months with respect to the primary residence of K. Only the primary residence of B. and M. has remained with the petitioner since 2010 subject to the respondent’s parenting time as outlined above. [37] What the petitioner is actually seeking is an order that the children should be in her lawful custody or care except for the times set out in her application. This means that the purpose and intent of her application is to obtain an order eliminating the parenting arrangements that have evolved for the children in manner that would change the primary residency of T. and K., and severely restrict the respondent’s parenting time with all four children. [38] In his order dated November 22, 2012, Kraus J. found that “each parent is loving and capable of making all of the needs of the children”. He stated his belief that both parents were capable of working out long term parenting plan in the interests of the children. Based on that belief, he made it clear his order was intended to be applicable “in the short term, on an interim basis only, to ensure stability in the lives of the children”. His expectation was that the petitioner and the respondent would adjust their parenting responsibilities in an appropriate manner. The evidence is clear that over time they have done exactly that. [39] If any of the current arrangements were unacceptable to the petitioner (or “imposed” upon her, as she claims), she had ample time and opportunity to oppose them. review of the pleadings and proceedings demonstrates that her practice has been to file applications quickly, and (as again on this application) to seek orders abridging the time to have them heard on short notice. [40] Given the length of time that both parents have had equal parenting time with the children during holidays and that the primary residency of T. and K. has been with the respondent, I find it mostprobable that the current status quo evolved – not because of “parental alienation” on the part of the respondent, but by the agreement of the parties. [41] These findings of fact are based on the affidavit evidence. Some facts (especially those relating to the petitioner’s approach to disciplining the children) are contentious. make no findings of fact on those matters but simply refer to the information to provide context to the issues. Conflicts can be resolved at trial. [42] That said, K.’s situation requires special consideration. She has primarily resided with the respondent for only four months. She is only 11 years old, not old enough to be making decisions that would have her moving her primary residency back and forth from one parent to the other whenever she chooses or problems arise, as they inevitably will. My determination that her primary residency is with the respondent is not in any way intended to fetter different conclusion based on evidence that may be available at trial. [43] The question is what, if anything, should be done now to further the best interests of the children? Certainly, it will not be to grant an order of the kind sought by the petitioner. The respondent has not brought formal application to change the previous interim order indeed, given the short notice, he had little opportunity to do so. One option would be to adjourn the petitioner’s application to enable that to be done. There is no reason to believe that the children would be at any risk in the meantime. [44] However, in my view, an adjournment at this point would simply add to the time and cost of dealing with the problem to no particular end: it would add nothing to the court’s understanding of the circumstances, and it would leave the children in continuing state of uncertainty. It would also be inconsistent with the purpose and intention of the foundational Queen’s Bench Rules, the first of which are set out in Rule 1-3, which states: 1-3(1) The purpose of these rules is to provide means by which claims can be justly resolved in or by court process in timely and cost effective way. (2) In particular, these rules are intended to be used: (a) to identify the real issues in dispute; (b) to facilitate the quickest means of resolving claim at the least expense; [45] The other alternative will be for the court to respond to the purpose, intent and substance, rather than to the form, of the petitioner’s application. As have found, although the application, on its surface, is cast as request for restraining order under s. 23 of The Children’s Law Act, 1997, it is, in reality, an application for an order substituting completely different parenting regime for the children than the one that has evolved and is in place by agreement. will respond to it for what, in substance, it is. [46] In Guenther Guenther (1999), 1999 CanLII 12554 (SK QB), 181 Sask 83 (QB), case dealing with competing applications for interim custody of five year old child, Laing J. stated: 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. [47] After citing additional authorities to the same effect, Laing J. stated: 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. [Emphasis added] [48] court order recognizes the status quo. Following court order, status quo may be changed by agreement of the parties and if the new arrangement serves the best interests of the children, it will be recognized by the court. In Gebert Wilson, 2015 SKCA 139 (CanLII), 467 Sask 315, Ryan-Froslie J.A. stated: 11 First, the principle expressed in Guenther does not displace the legislative requirement enunciated in both the Divorce Act, RSC 1985, and The Children's Law Act, 1997, SS 1997, C-8.2 that in making decisions with respect to parenting arrangements, the paramount consideration is the best interests of the child. In our view, the principle itself is rooted in that paramount consideration. It recognizes that changes in custody and primary residence have profound effect on children altering their day to day home environment, their routine, their contact with important people in their lives including caregivers, siblings, extended family and friends and may result in change of school and activities and thus, generally should not occur on an interim or temporary basis as final resolution may result in such change being reversed with all of the same attendant disruptions to the child. 12 Second, the principle applies generally to changes in custody and primary residence, as opposed to changes in access. In Guenther, while Laing J. refused to change the child's custody on an interim basis in the face of the parent's written agreement, he did increase the mother's parenting time with the child. Usually, changes in access will not have the same profound effect on child as changes in custody or primary residence. 13 Third, the principle recognizes that the status quo may be changed on an interim basis if there is compelling reason to do so, or if the child is at risk. That is how this Court interpreted Guenther in the recent case of Napper-Whiting Whiting, 2014 SKCA 33 (CanLII), 433 Sask 235. That case involved the appeal of an interim order which changed primary residence of child from the mother to the father. Herauf J.A. speaking for this Court quoted with approval para. of Guenther, and then stated the following in reference to that paragraph: [4] We wish to reiterate that this is the appropriate test for applications of this nature. In this particular appeal we find that the Chambers judge failed to find that the child was "in some way at risk, or other compelling reason..." [Emphasis in original] In short, risk to the child is not the only reason for varying the status quo on an interim basis. 14 Finally, we feel it is necessary to comment on what constitutes the status quo for the purpose of applying the principle. All of this must be considered against the backdrop of what is in the best interest of the child, including the relationship that the child enjoyed with both parents prior to the separation. [49] Counsel for the petitioner argues that the current status quo should be altered because siblings should have their primary residence with the same parent. On the facts of this case, where the primary residency of two children is with each parent, that argument is as favourable to the respondent as it is to the petitioner. In any event, the judicial authorities are clear: keeping siblings together is an important but not determining factor in custody applications. Where there is successful de facto situation and the children have stable homes, it may be appropriate to separate them. Conclusion [50] Applying the above principles to the situation before me, I have decided that the status quo should continue and that the parenting issues should proceed to trial as quickly as possible. [51] Accordingly, it is hereby ordered: 1. The petitioner and the respondent shall continue to have interim joint custody of the children of the marriage; 2. The primary residence of B. and M. shall be with the petitioner, while the primary residence of T. and K. shall be with the respondent; 3. The respondent shall have parenting time with B. and M. as follows: a) On the alternating weekends when he is parenting T. and K. from Thursday after school until Monday morning, to be extended to Tuesday when Mondays are school holiday; b) Every other week from Thursday after school until Friday morning; c) For one-half of all Christmas, Easter and summer holidays. 4. The petitioner shall have parenting time with T.: a) on alternating weekends from Friday after school until Monday morning, to be extended until Tuesday morning when Monday is school holiday; b) three overnights each calendar month from Wednesday after school until Thursday morning; and c) for one-half of all Christmas, Easter and summer holidays. 5. The petitioner shall have parenting time with K.: a) on alternating weekends from Friday after school until Monday morning, to be extended until Tuesday morning when Monday is school holiday; b) one overnight every week from Wednesday after school until Thursday morning; and c) for one-half of all Christmas, Easter and summer holidays. 6. Each party shall be entitled to pick up and drop off the children at school at the beginning and end of their respective parenting times; 7. By consent, the style of cause in these proceedings shall be amended by changing the petitioner’s surname from “S.” to “H.”; 8. The petitioner and the respondent shall each immediately register in and complete the High Conflict Parenting Course and file with the court Certificate of Attendance within 60 days; 9. Pursuant to Rule 4-4 of The Queen’s Bench Rules, the parties are directed to attend pre-trial management conference with the court for the purpose of expediting trial of the parenting issues between the parties, if necessary by severing them from the unresolved family property issues. [52] There will be no order as to costs.

Family Law – Custody and Access – InterimThe petitioner and the respondent had four children during the course of their marriage. They separated in 2010 and the petitioner applied for interim orders, including arrangements for the parenting of the children. The court made an interim order that the parties would have joint custody with the primary residence of the children to be with the petitioner. The respondent would have access at reasonable times and on every other weekend. The parties reconciled for two years but then separated again. In 2012 the petitioner applied for an order enforcing the 2010 interim custody order. At that application, the court found that both parents were capable of parenting, but in the short term it confirmed terms of the 2010 order. A number of pre-trial conferences were held without resolving matters, and during that time, the parenting arrangements changed substantially. The oldest child began residing with the respondent in December 2014. In December 2015, the second oldest child began residing with the respondent. They stayed with the petitioner on alternate weekends. The applicant then brought this application for an order pursuant to ss. 23(1)(a) and (e) of The Children’s Law Act and pursuant to the 2012 court order, confirming the original interim order that the four children of the marriage have their interim primary residence with her and that the respondent have specified parenting time on one day each week and alternating weekends. The petitioner alleged that the respondent was attempting to influence the two youngest children to reside with him. HELD: The court ordered that the status quo parenting arrangement should remain in place until trial. In this case, the status quo was not the arrangements as they had been in 2010 and in 2012. The court found that the arrangements had evolved since the 2010 order by agreement of the parties and the changes had not occurred because the respondent was attempting to alienate the children from the petitioner.

4_2016skqb136.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 284 Date: 2014 09 08 Docket: F.L.D. 359 of 2009 Judicial Centre: Regina (Family Law Division) BETWEEN: JENNY LYNN HAMBLIN and BRUCE MASNIUK Counsel: Jenny Hamblin appearing on her own behalf Bruce Masniuk appearing on his own behalf JUDGMENT MEGAW J. October 6, 2014 INTRODUCTION [1] There are two applications before the court. The respondent father has applied to reduce his child support obligation and to extinguish arrears of child support as result of him quitting his job and embarking on an apprenticeship program to become an electrician. The petitioner mother has applied to become the sole custodian parent of the parties’ two daughters. Both parties therefore seek to vary the existing court order regarding support and parenting. [2] The order involved is final order granted by Wilson J. at the conclusion of the pre-trial conference in this matter dated March 20, 2012. The claim for support was initially made in the Petition pursuant to The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2. BACKGROUND FACTS [3] The parties have two children who are now eight and nine years of age. The children reside with the petitioner and the respondent is to have reasonable access on reasonable notice. It appears the respondent has not been exercising access and has had little involvement in the lives of the children. [4] At the time the order was granted the respondent was found to be earning $75,000 per year. He was working for Sysco in Regina in Senior Merchandising manager position. At the end of August 2013 he voluntarily terminated his employment. In his affidavit he indicated he left the job due to its high stress level which was causing health difficulties for him. At the initial return date of this motion the respondent was directed by the chambers judge to present appropriate medical evidence that the termination of his employment at Sysco was medically necessary. During oral submissions before me the respondent indicated he did not plan on filing any medical information and stated that he left his employment because he was “fed up”. There was no other explanation provided. [5] Following the termination of employment the respondent commenced work as an apprentice electrician with local electrical company. His hourly wage went from $36.50 to $14.00. He deposed that he was presently earning $29,000 year and any increases would be small for the next period of time. The respondent is presently 43 years of age. He is in excess of $10,000 in arrears of his support obligation. [6] The petitioner seeks sole custody of the two children because she is the only one providing for the children and is the only one parenting the children. She deposes that the respondent has essentially been an absentee father. The respondent provided no response to the petitioner’s allegations and declined to give any further information at the chambers hearing. The respondent did not appear to have any interest in the discussion on parenting. [7] As indicated, this final order for child support is sought to be varied pursuant to s. 10 of The Family Maintenance Act, 1997 in which there must be material change in circumstances to warrant variation of the child support provisions. The preliminary question is therefore whether voluntary change constitutes material change. For voluntary change to be material change it must be reasonable in the circumstances. There are number of decisions confirming this interpretation and refer to Wong v. Wong (1996), 1996 CanLII 7235 (SK QB), 150 Sask.R. 101, [1996] S.J. No. 695 (QL) (Sask.Q.B.); Tice v. Tice (1997), 1997 CanLII 11451 (SK QB), 153 Sask.R. 73, [1997] S.J. No. 32 (QL) (Sask.Q.B.); Kuzub v. Kuzub, 2002 SKQB 259 (CanLII), 220 Sask.R. 192; and McRann v. McRann, 2005 SKQB 207 (CanLII), 263 Sask.R. 139. [8] In Wong, Laing J. considered an application seeking to reduce child support as result of the applicant quitting his job and relocating to operate small auto repair shop. The applicant’s income decreased and he was struggling to build the repair shop business. The court refused to find the reduction in income to be material change in the circumstances as the change in employment was voluntary, was not reasonable and did not accurately reflect the applicant’s ability to earn income. [9] In Tice, Archambault J. dealt with an applicant who was employed as an electrician but voluntarily left his position to start his own business. As is the case here, the applicant in Tice did not apply for any other jobs prior to embarking on his new venture. In refusing to grant the request for variation the court stated: It is now well established law in this province that where parent voluntarily and without sufficient justification ceases his employment to continue education or for some other reason or to engage himself/herself in less lucrative employment, he/she will not be relieved of the obligation to continue supporting dependent children…(cites omitted) [10] In McRann, Wilkinson J. dealt with the father’s decision to change employment voluntarily. At para. she states: There is substantial case law stating that an unreasonable, self-induced income reduction is insufficient justification for varying child support order. [11] Wilkinson J. then goes on to explain the rationale behind the court’s insistence on any change in employment or income being reasonable from an objective viewpoint (at para. 9): Parents are entitled to make employment or career changes that may impact on their ability to pay support so long as the decision is reasonable at the time having regard to relevant considerations such as personal factors (the parent’s age, education, experience, skills, historical earning capacity, health considerations and the motivations behind the change) and external factors (standard of living experienced by the intact family, availability of work, mobility and freedom to relocate) The onus is upon the support payor to prove reasonableness… [12] In the case before me, the respondent was employed in position for considerable period of time and was earning good salary. As indicated, the respondent advised the court he needed to change his employment because he was fed up with the situation. He advised candidly that he did not apply for any other positions to continue earning the same or similar level of income. Instead, he decided to embark upon change in career with significant financial consequences to his children. [13] In the circumstances am unable to determine his decision to just terminate his employment was reasonable. The respondent has financial obligations to his children. While his position at Sysco may not have been working out to his satisfaction, he could have embarked upon job search to find something within the same pay range that would have suited his career aspirations. Failing that, he could have engaged in discussions with his employer to determine if something could be changed or altered to allow him to remain in his position. Failing all of that, he should have simply stayed put to allow him to satisfy his child support obligations. What was not reasonable decision was to just quit and expect the petitioner then to absorb greater financial burden for the children. [14] In the result, the respondent’s voluntary decision to significantly reduce his income is found to be insufficient grounds to vary his child support obligation. It is apparent he is capable of earning considerably higher income and has taken no steps to test the job market. Accordingly, the application to vary child support by the respondent is dismissed. The respondent’s decision was ill-conceived. have considered Tice like suspension of payments to allow the respondent to obtain appropriate remunerative employment. However, this does not appear to be an appropriate case for the court to exercise its discretion in this way. In light of the court’s decision, the respondent will need to take immediate steps to put himself back into position to provide for his child support payments. [15] The petitioner has brought an application to change the custody and access arrangements for the two girls. While it is apparent the respondent is less than an involved father, it does not appear that situation is new development in the relationship between the parties. It appears this application to vary was brought more out of frustration for the respondent’s lack of involvement than as result of any material change that has taken place. As a result, I am unable to find that there has been a material change in circumstances as required to vary the existing order, and the petitioner’s application in this regard is dismissed. [16] While there was an application brought by each of the parties, the application to vary the child support was the significant matter before me. The petitioner has been successful in opposing this application and accordingly is entitled to costs which fix in the amount of $200.00 payable forthwith.

HELD: The court dismissed both applications. The respondent’s voluntary decision to significantly reduce his income was insufficient grounds to vary his child support application. The court found that there had not been a material change in the circumstances with regard to the petitioner’s application.

c_2014skqb284.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 37 Date: 20040315 Between: Docket: 783 [R.J.E.] (Petitioner) Appellant [H.M.E.] (Respondent) Respondent Coram: Tallis, Cameron Lane JJ.A. Counsel: James A. Johnson for the Appellant Lyle O. Phillips for the Respondent Appeal: From: FLD 23 of 1999, J.C. of Moose Jaw Heard: March 15, 2004 Disposition: Dismissed (orally) Written Reasons: March 16, 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 counsel for the respondent. mentioned during the opening of this appeal that members of the panel had followed the usual practice of carefully reviewing the trial record and written arguments before this hearing. [2] We are all of the view that there is no basis to interfere with the decision of Mr. Justice Smith. As his extensive reasons for decision disclose he addressed the matter thoroughly. [3] This was a difficult case in which the trial judge was required to carefully address the competing claims for custody, but mindful of the “best interests of the child”. Throughout the trial and in his reasons the learned trial judge focussed on this predominant issue. And in our view he addressed it as required by law. [4] We cannot say that the learned trial judge erred in any material respect when weighing and considering the evidence. Since the parties were unable to resolve the issues to their mutual satisfaction, it fell to the trial judge to make “hard choice”. He had the distinct advantage, that we do not have, of seeing and hearing the parties and being able to form an impression of them. [5] We dismiss this appeal with costs on double Column 5. [6] We cannot part from this appeal without noting the acrimonious history of litigation concerning custody and access. The welfare of [B.E.] would be better served by spirit of compromise. The time, energy and expenses incurred in protracted litigation could be put to better use in advancing the welfare of this young child.

Fulltext of judgment follows:[1] We do not need to hear from counsel for the respondent. I mentioned during the opening of this appeal that members of the panel had followed the usual practice of carefully reviewing the trial record and written arguments before this hearing.[2] We are all of the view that there is no basis to interfere with the decision of Mr. Justice Smith. As his extensive reasons for decision disclose he addressed the matter thoroughly. [3] This was a difficult case in which the trial judge was required to carefully address the competing claims for custody, but mindful of the 'best interests of the child'. Throughout the trial and in his reasons the learned trial judge focussed on this predominant issue. And in our view he addressed it as required by law. [4] We cannot say that the learned trial judge erred in any material respect when weighing and considering the evidence. Since the parties were unable to resolve the issues to their mutual satisfaction, it fell to the trial judge to make a 'hard choice'. He had the distinct advantage, that we do not have, of seeing and hearing the parties and being able to form an impression of them. [5] We dismiss this appeal with costs on double Column 5. [6] We cannot part from this appeal without noting the acrimonious history of litigation concerning custody and access. The welfare of [B.E.] would be better served by a spirit of compromise. The time, energy and expenses incurred in protracted litigation could be put to better use in advancing the welfare of this young child.

6_2004skca37.txt

J. 2003 SKQB 170 Q.B.A. A.D. 2002 No. 18 J.C.B. IN THE COURT OF QUEEN’S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: ROBERT EDWARD TODD and HER MAJESTY THE QUEEN RESPONDENT Roderick M. Gillies for the appellant K. Scott Bartlett for the respondent JUDGMENT APRIL 9, 2003 KRUEGER J. [1] The appellant was convicted on October 23, 2002, of an assault on Dale Yvonne Emery, contrary to s. 266 of the Criminal Code. His sentence was suspended with a one-year probation order. He appeals from the conviction. [2] The stated grounds of appeal are:(a) The learned trial judge erred in law by making findings of fact based on evidence that did not exist;(b) The learned trial judge erred in law by making findings of credibility based on evidence that did not exist;(c) The learned trial judge erred in law by misapplying the appropriate standard of proof. [3] During argument on behalf of the appellant it was suggested that the trial judge made three errors of law leading to the conviction. One of those errors also amounted to an error of fact; (i) The trial judge referred to photographs depicting the extent, location and nature of injuries suffered by the complainant when no photographs existed or if they did were never tendered in evidence. This also amounted to an error of fact or mixed law and fact. (ii) Although correctly articulating the test in R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, the trial judge misapplied the test in determining credibility. (iii) The trial judge failed to apply the appropriate test for a defence of necessity. STANDARD OF REVIEW [4] Summary conviction appeals are authorized by s. 813 of the Criminal Code. The powers of the appeal court pursuant to s. 822 are the same as for the Court of Appeal under s. 686. The applicable portions of s. 686 are: 686. (1) Powers On the hearing of an appeal against conviction or against verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of wrong decision on question of law, or (iii) on any ground there was miscarriage of justice; (b) may dismiss the appeal where (i) the court is of the opinion that the appellant, although he was not properly convicted on count or part of the indictment, was properly convicted on another count or part of the indictment, (ii) the appeal is not decided in favour of the appellant on any ground mentioned in paragraph (a), (iii) notwithstanding that the court is of the opinion that on any ground mentioned in subparagraph (a)(ii) the appeal might be decided in favour of the appellant, it is of the opinion that no substantial wrong or miscarriage of justice has occurred; 686(2) Order to be made Where court of appeal allows an appeal under paragraph (1)(a), it shall quash the conviction and (a) direct judgment or verdict of acquittal to be entered; or (b) order new trial. EVIDENCE PHOTOGRAPHS [5] In rendering his decision the trial judge, after reviewing the appropriate standard, turned his attention to the evidence of the complainant. He stated at page 263 of the transcript: But this young lady was in relationship with the accused person, went up there to this cabin with no reason for apprehension whatever, and was suddenly subjected to this very pronounced mood change by the accused on his part, and she went ahead to describe in this court carefully series of events which involved the accused subjecting her to physical force, and we’ve seen photographs of some of her injuries and we’ve heard, of course, evidence of what her injuries were. [Emphasis added] [6] There were no photographs of any injuries introduced into evidence at the trial. The emphasized portion of the trial judge’s statement amounted to an error in law. Generally the judgment of trial court is set aside when wrong decision is made on question of law. An exception is when no substantial wrong or miscarriage of justice has occurred. [7] Section 265(1)(a) of the Criminal Code provides that person commits an assault where without the consent of the victim force is applied either directly or indirectly. If believed, there was evidence that after an argument developed between the appellant and the complainant in the truck in which they were riding, she fled into dense bush. The appellant pursued her and after further argument proceeded to physically force the complainant’s return to the truck. That force need not have resulted in physical injuries to constitute an assault. If applied without the consent of the complainant the force amounted to an offence under s. 266 of the Criminal Code. [8] Finding that there were photographs to corroborate the testimony of the complainant relating to her injuries was an error of law. No miscarriage of justice resulted from that error. It was immaterial whether there were injuries. The conviction cannot be set aside for that error of law alone. CREDIBILITY [9] The appellant denied that injuries suffered by the complainant resulted from the manner in which he returned her to the truck. He explained how the complainant could have injured herself when attempting to kick him while they were both seated on the ground. [10] As already stated, it was not necessary for the Crown to prove that the force used by the appellant caused physical injuries. If, however, believing in the existence of photographs enhanced the credibility of the complainant it could lead the trial judge to an error in law. At the top of page 263 of the transcript the trial judge assessed the evidence of the complainant this way: It was my assessment of her evidence that she was truthful witness. There are, as both Counsel have noted, number of features of this case where there’s no in effect, certain things are not subject to dispute, things that were agreed to by both the Crown witnesses and the accused. The trial judge clearly preferred the testimony of the complainant to that of the appellant where their recollection of events differed. He did not state why he preferred her testimony. [11] When applying the test required by R. v. W. (D.), supra, the trial judge stated at page 264: His (the accused’s) evidence does not leave me in situation where he has created reasonable doubt in my mind, and the third step in the W.D. case, am left in situation where on the basis of the evidence accept, am convinced beyond reasonable doubt by that evidence of the guilt of the accused. [12] Mr. Justice Cory, of the Supreme Court of Canada, in R. v. W. (D.) stated that where credibility is in issue, the trier of fact must follow three rules: (a) if the accused is believed, there must be an acquittal; (b) if the accused is not believed, but his/her evidence raises reasonable doubt as to guilt, there must be an acquittal; (c) even if left in no doubt by the evidence of the accused, the trier of fact must be convinced beyond reasonable doubt by all of the evidence before the accused can be convicted. The trial judge correctly stated, considered and applied the test where credibility is in issue. I am unable to conclude that his belief in the existence of photographs influenced his finding of credibility. Even if it did, there was still ample evidence to support a prima facie case of assault. Again no miscarriage of justice resulted. [13] Much of the appellant’s evidence was devoted to presenting defence of necessity. The appellant testified that when the complainant left his truck and retreated into the dense brush he became concerned for her safety. It was then approaching dusk and they were too far from his cabin for her to find her way back to civilization. The appellant was conscious of bears and insects that could threaten the welfare of the complainant at night. After considering as an alternative leaving to notify the police, the appellant decided that his most reasonable course of action was to force the complainant back to the truck for her own safety. [14] At page 264 the trial judge dealt with the defence of necessity: The defence of necessity as skillfully and carefully explained by both Counsel simply cannot apply to this situation when do not and will not believe the accused’s account of how her injuries came about, which largely [sic] and culminated in his explanations of his attempt to save her from various dangers that may well exist in the bush and in the country and in the night. The Supreme Court of Canada in R. v. Latimer (2001), 2001 SCC (CanLII), 150 C.C.C. (3d) 129, directed that three elements must be present for defence of necessity. There must be imminent peril or danger, an absence of reasonable alternative and proportionality between the harm inflicted and the harm avoided. The defence of necessity is considered in cases where there is an air of reality to it. That means that there must be sufficient evidence, if believed, to justify an acquittal. [15] In his reference to the defence of necessity, the trial judge stated at the bottom of page 264: So for that defence to apply, it has to be on an evidentiary basis, and simply cannot accept his evidence as giving foundation for the legal defence of necessity to be triggered by this factual situation. Clearly, these situations vary from case to case markedly. It is clear from the comments of the trial judge that he did not accept the appellant’s testimony when he stated that he did not cause injuries in forcing the complainant’s return to the truck. Crown counsel argued that the trial judge also did not accept the appellant’s testimony that he used force only to protect the complainant from the natural hazards that existed in that location at night. In support of that argument, the court was referred to the concluding comments made by the trial judge at page 265: So again, feel that all the witnesses were careful in attempting to be truthful with their evidence. Where it varies from the evidence of the accused on these points, do accept the evidence of Ms. Emery in preference to his evidence. [Emphasis added] The reference to “on these points” it was suggested relate to the appellant’s reasons for the use of force. [16] The complainant did not testify as to the conditions in the bush other than to acknowledge that she would not have been able to find her way back to the appellant’s cabin. She became frightened by the sudden verbal outburst of the appellant, fled into the bush and refused to return because the appellant’s mood had not changed. The only evidence presented relating to the defence of necessity came from the appellant. [17] If the trial judge believed the appellant when he spoke of the perils that existed at night in the bush and of the lack of reasonable alternatives, there was some evidence that could amount to an air of reality. In such case he ought to have embarked upon consideration of the three elements prescribed by the Supreme Court of Canada. cannot agree with Crown counsel that the concluding remarks by the trial judge indicated that he was not accepting any evidence of the accused.. The final comments of the trial judge do nothing to extend his disbelief about causing injuries to all of the appellant’s evidence. In my view, the trial judge failed to properly consider the defence of necessity. That was an error of law. [18] It would not be appropriate in the circumstances of this case to substitute an acquittal for the conviction. Had the trial judge applied the appropriate test, he may have come to the same conclusion. Accordingly, I allow the appeal, set aside the conviction and order a new trial before a judge of the Provincial Court for Saskatchewan.

The appellant, who received a suspended sentence with a one year probation order, appealed his conviction of assault (Criminal Code s.266) on the grounds the trial judge erred in law in making findings of fact and credibility based on evidence that did not exist (photographs of injuries that were not introduced into evidence at trial); by misapplying the appropriate standard of proof; although correctly articulating the test in R. v. W(D), misapplying that test in determining credibility; by failing to apply the appropriate test for a defence of necessity. The complainant, frightened by the sudden verbal outburst of the appellant, fled into the bush and refused to return because his mood had not changed. The trial judge did not accept the appellant's testimony that he used force only to protect the complainant from natural hazards in that location at night. HELD: The appeal was allowed. The conviction was set aside and a new trial was ordered. 1)Finding that there were photographs to corroborate the testimony of the complainant relating to her injuries was an error of law. No miscarriage of justice resulted from that error, as it was immaterial. 2)The trial judge clearly preferred the testimony of the complainant to that of the appellant but did not state why. It could not be concluded that his belief in the existence of photographs influenced the findings of credibility. Even if it did, there was still ample evidence to support a prima facie case of assault. Again no miscarriage of justice resulted. 3)The trial judge erred in law by failing to properly consider the defence of necessity. The three elements that must be present for a defence of necessity, as determined by the SCC in Latimer, include imminent peril or danger; absence of reasonable alternatives; proportionality between the harm inflicted and the harm avoided. The defence of necessity is considered in cases where there is an air of reality. The only evidence relating to the defence of necessity came from the appellant. It would not be appropriate in the circumstances of this case to substitute an acquittal. Had the trial judge applied the appropriate test, he may have come to a different conclusion.

6_2003skqb170.txt

M.L. Gray QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 18 Date: 2007 01 15 Docket: Q.B. No. 428/2006 Judicial Centre: Yorkton IN THE MATTER OF SECTION 49(1) OF THE RESIDENTIAL TENANCIES ACT BETWEEN: RICH-PROP INVESTMENTS INC. and VERNON ANDRES, IVY ANDRES and RICHIE ANDRES RESPONDENTS and THE OFFICE OF THE RENTALSMAN Appearing: Wayne M. Rusnak, Q.C. for the appellant Vernon Andres appearing for himself No one appearing for Ivy Andres and Richie Andres No one appearing for the Office of the Rentalsman JUDGMENT GUNN J. January 15, 2007 [1] This is an appeal by Rich-Prop Investments Ltd. (the “Landlord”) pursuant to s. 49 of The Residential Tenancies Act, R.S.S. 1978, c. R-22, as am. S.S. 1992, c. 37 (the “Act”) from a decision of the Deputy Rentalsman (the “Rentalsman”) who, pursuant to s. 47 of the Act dismissed an application by the Landlord for a writ of possession. [2] The issues are whether all the tenants had proper notice of the termination of the tenancy and the hearing, whether the landlord could give notice of termination of the tenancy without any cause, and whether the Rentalsman could refuse to grant an order for writ of possession when there was an outstanding order of the Rentalsman which postdated the application in question. [3] The Landlord’s Notice of Appeal which was filed within the 30-day period set out the following: (a) The Rentalsman erred in law in holding that: (i) some type of cause should be behind any eviction; (ii) request for an order may be refused to be issued to landlord who is in contravention of an order from the Office of the Rentalsman; (iii) Statutory Condition 19 of Section 20 has application to termination of tenancy. [4] The material available for review is limited to the Notice of Appeal from the decision of the Deputy Rentalsman filed by the appellant and the documents filed and the decision of the Rentalsman. [5] The pertinent materials appear to be the following: (a) There is document with the title “Rental Agreement.” It provides in part the following: I/We Vern/Ivy/Richie Andres (“the tenant”), hereby offer to rent the property known as ... in the city of Yorkton, subject to the following conditions: 1. The cost of the rent will be $545.00 per month, payable monthly in advance on or before the 1st day of the month. 2. The term of this rental agreement will be for commencing on April 1-03 and terminating on 3. The premises will be occupied by no more than persons. 4. Vacating notice must be given calendar month prior to the expiration of this rental agreement, failing which this agreement will become monthly rental agreement subject to calendar month notice of termination.... Signed at Yorkton on this the day of March 2003 “V.R. Andres” ... “The Tenant” Witness Accepted on behalf of Richprop Investments Inc. on this the day of 20 On behalf of “the Landlord” (b) Notice to Tenant dated July 24, 2006 directed to Vern Andres, Ivy Andres and Richie Andres notifying them of the cancellation of their tenancy agreement with the Landlord no later than midnight, August 31, 2006 was served personally on Vern Andres on July 26, 2006 and on Ivy Andres on July 27, 2006. There is no evidence of service of the notice on Richie Andres. (c) The Application for Claim under the Act dated September 1, 2006 sets out the following persons as tenants: “Vern Richie Andres” and “Ivy Andres.” The Landlord’s application is claiming an order for possession based on Notice to Terminate Lease. The Landlord seeks writ of possession. (d) The Hearing Notice is directed to Vern Andres, Ivy Andres and Richie Andres. This hearing notice contains the following information: Notice to terminate served on 26/07/2006 (Day/Month/Year) hereby certify this claim to be correct Rusnak Balacko Kachur Rusnak Per: “Wayne M. Rusnak’ Wayne M. Rusnak, Q.C. The hearing was set for September 21, 2006. (d) letter dated September 13, 2006 and directed to Vern Andres, Ivy Andres and Richie Andres, and signed by Helen Burka, Manager (Rich-Prop Investments Inc.) provided as an enclosure copy of the Notice of Hearing and Claim, and further provided notice that the hearing would be held on September 21, 2006 at 2:30 p.m. This letter was placed in the mail addressed to the tenants on September 13, 2006 and posted on the main entrance to the rented premises on the same date. (e) The decision of the Deputy Rentalsman is dated September 26, 2006 and names Vern Andres and Ivy Andres as tenants. There is nothing in the decision relating in any way to Richie Andres. [6] Sections 22, 23 and 25 of the Act permit either landlord or tenant to terminate monthly tenancy. [7] These sections provide as follows: 22(1) ... monthly ... tenancy may, unless otherwise mutually agreed upon between the landlord and the tenant, be terminated by the landlord or the tenant upon written notice to the other, which notice shall: (a) meet the requirements of section 23; (b) be given in the manner prescribed by section 24, 25 or 26, as the case may be.... 23(1) notice of termination of tenancy agreement by landlord or tenant shall be in writing and shall: (a) be signed by the person giving the notice or by his duly authorized agent; (b) identify the premises in respect of which the notice is given; and (c) state the date on which the tenancy is to terminate.... 25(1) notice to terminate monthly tenancy shall be given not later than the last day of any month of the tenancy to be effective on the last day of the immediately following month of the tenancy. [8] Service of the notice to terminate is governed by s. 60 of the Act. It reads in part as follows: 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. [9] Notice to Tenant providing that the tenancy agreement was being cancelled by the Landlord effective August 31, 2006 was served personally on Vern Andres and Ivy Andres on July 26 and July 27 respectively. There is no evidence it was ever served on Richie Andres. However, pursuant to the provisions of s. 60, it appears to be permissible to serve an adult person apparently residing in the premises of the tenant. Accordingly there was no need to personally serve Richie Andres in the circumstances. It was served within the time permitted pursuant to s. 25(1) of the Act. [10] The tenants failed to vacate the premises in accordance with the Notice to Tenant and the Landlord applied to the Rentalsman for writ of possession. The application is governed by s. 47 of the Act which provides in part as follows: 47(1) An application for an order respecting any residential tenancy dispute may be made: (a) to the Rentalsman, in the form and manner that the Rentalsman may direct.... (1.1) Subject to subsection (5.1), if an application is made to the Rentalsman pursuant to subsection (1) ... the Rentalsman shall issue to the applicant written notice of hearing and the applicant shall serve that notice on those persons concerned with the matter that the Rentalsman may direct and in the manner the Rentalsman may direct. (1.2) The Rentalsman shall issue written notice of hearing and cause the notice to be served on all parties concerned with the matter where: (a) the Rentalsman becomes aware of possible contravention or failure to comply with this Act, the regulations, an order made pursuant to this Act or tenancy agreement; and (b) the Rentalsman determines that it is in the public interest to hold hearing. (2) On receiving an application pursuant to clause (1)(a) or determining pursuant to subsection (1.2) that hearing should be held, the Rentalsman: (a) may direct an investigation.... (b) shall hold hearing; (c) after holding hearing pursuant to clause (b), may make any order the Rentalsman considers just and equitable in the circumstances.... (2.1) For the purposes of hearing pursuant to clause (2)(b): (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 Rentalsman considers appropriate. (3) Upon making an order under clause (c) of subsection (2), the Rentalsman shall provide copy of the order and copy of section 49 to each party involved in the matter in respect of which the order was made. (5.1) The Rentalsman may refuse to issue written notice of hearing to, or decline to make an order respecting, landlord who: (a) is in contravention of an order of the Rentalsman.... [11] notice of hearing directed to Vern Andres, Ivy Andres and Richie Andres was issued by the Rentalsman setting hearing date for September 21, 2006 at 2:30 p.m. [12] The Notice of Hearing and Claim were served by Helen Burka, the manager of the property in question by placing it in the mail at #18 336 Gladstone Avenue S. Yorkton, SK and by posting true copy of the Notice of Hearing and Claim on the main entrance to #18 336 Gladstone Avenue S. Yorkton, Sk both on September 13, 2006. [13] The Rentalsman proceeded with the hearing on September 21, 2006. No notes have been provided by the Rentalsman with respect to the hearing. The only evidence of what transpired is contained in the decision rendered. The decision states as follows: ... The Notice of Hearing was properly served. Evidence was presented or given by the following persons: Helen Burka for the Landlord and represented by Wayne Rusnak; Vernon Andres for the Tenants. Both parties appeared by way of telephone conference call. The tenants who are named in the decision are: Vernon and Ivy Andres. There is no reference whatsoever to Richie Andres, whose name appears on the tenancy agreement. [14] In Sylvestre v. Vu, 2004 SKQB 533 (CanLII), (2004), 260 Sask. R. 308 (Q.B.), Ball J. considered the issue of service of the notice of hearing. In Sylvestre, supra, the landlord placed the notice of eviction and notice of hearing in an envelope which he slipped under the back door of the residential premises, and on the same day mailed the notice of hearing to the tenant by regular mail. Ball J. said the following on the issue of service at para 10: ... The notice of hearing must be personally served on the tenant, served in compliance with directions pursuant to s. 47(1.1) of the Act, or served in accordance with the provisions of s. 60 of the Act. The requirements for notice are based on the rules of natural justice which entitle person whose rights may be affected by hearing to receive reasonable notice of that hearing and an opportunity to be heard.... [15] Even though the decision states that the Notice of Hearing was properly served, that cannot be the end of the matter given that there is nothing in the file which would indicate any directions having been given to the Landlord with respect to service other than personal service. Ivy Andres did not appear at the hearing, nor did Richie Andres and the decision does not even identify Richie Andres as being one of the tenants. More is required to ensure service of and notice to all the tenants. [16] Subsection 60(5.1) permits the Rentalsman to order that service is sufficient, even if not in compliance with the Act if, in the opinion of the Rentalsman, the notice or other document came to the attention of the person to be served. Here, there are no notes, nor is there anything in the decision which would permit me to conclude that the issue of service on Ivy and Richie was ever considered by the Rentalsman. In my view the matter must be returned to the Rentalsman for a rehearing upon proof of service of the hearing on all of the tenants. [17] While that disposes of the appeal, there are some other matters which are the subject of the Notice of Appeal and which merit obiter comment. [18] The decision was rendered September 26, 2006. It provides in part as follows: The Tenant, Vernon Andres ... also made mention that he is disabled and his parking closer to the door of the complex was because of those physical problems. The Tenants are no longer parking in visitor or firelane spaces. The Landlord takes the position that this is monthly tenancy and that landlord simply has to provide the proper full calender month’s notice and the tenancy should end. The Landlord has fulfilled those basic requirements. ... am of the opinion that some type of cause should be behind any eviction. If there is no good reason to end tenancy, then why would you want to evict someone if you are in the business of renting. One hesitates to say, but is must be for improper reasons. The thrust of [the Act] as stated in the Saskatchewan Court of Appeal case of Reich v. Lohse (1994) 1994 CanLII 4691 (SK CA), 123 Sask. R. 114 is to ... “provide tenants with some security of tenure.” With those considerations come the ability to order what is “just and equitable” in Section 47(2)(c) of the Act. The only reason provided to this hearing to end the tenancy was because of improper parking and the Tenants are not doing that anymore. It would not seem fair to evict on those grounds alone. ... Lastly, Statutory Condition 19 of Section 20 of the Act states that if party wishes to terminate tenancy because of breach of term of the agreement or Section 20 of the Act, then written notice must be provided to allow the other party reasonable period of time to remedy the problem. In this situation, the written lease did not mention parking stalls but it must be subsequent or implied agreement to park in designated places only. Otherwise, if not term, then tenants can park anywhere on the grounds. The Act allows written, verbal and implied tenancy agreements. The Tenant was not given any written notification of any breach and therefore the Landlord had not complied with the legislation to be able to terminate and take possession of the rental premises. [19] This leads to the question whether the Landlord must prove that it would be just and equitable to grant writ of possession. The Rentalsman has found as fact that the Landlord has satisfied the basic requirements of the Act to terminate monthly tenancy. [20] In Sturgess v. Gladmer Developments Ltd., [1975] S.J. No. 46 (QL) (D.C.), McIntyre D.C.J. said the following in relation to subsection 35(3), the predecessor to s. 47, as follows at paras. 19 ... must determine if the mere giving of notice of termination based on [an] alleged contravention of the policy of the landlord is sufficient to permit the landlord to obtain writ of possession. 20 am of the view that something more than the mere giving of notice of termination is required and that must give meaning to the words “make such order as consider just and equitable”.... [21] Justice McIntyre found that no injustice or inequity would result to the landlord if the tenancy continued; whereas writ of possession would be unjust and inequitable to the tenant. [22] In Schoonover v. Caswell, 1997 CanLII 11401 (SK QB), [1997] W.W.R. 558; (1997), 157 Sask. R. 241 (Q.B.), Klebuc J. (as he then was) considered the Gladmer decision, supra, and found nothing in it to support the proposition that in all cases the landlord must prove that the issuance of writ of possession would be just and equitable. Klebuc J. concluded in Schoonover, supra, that the rentalsman had erred in law by requiring the landlord to prove on balance of probabilities that the issuance of the requested writ of possession was just and equitable. [23] This issue was also considered directly by Justice Foley in Leddy v. Turanich Acquisitions Management Inc., 2004 SKQB 153 (CanLII); (2004), 251 Sask. R. 81 (Q.B.) who said the following at paras. [7] In my opinion, for the reasons which follow, the Rentalsman erred in law in his adoption and application of Sturgess v. Gladmer, in his insistence on reasons being given for the Landlord’s termination and in any event in his conclusion that the “consistently late rent payments” were, in the circumstances of this case, breach of the terms of the tenancy. [8] The Landlord in its initial application to the Rentalsman and in its claim as certified, asserted that it had served notice to terminate on the Tenant on December 31, 2003 requiring the Tenant to vacate by January 31, 2004 and, as the Tenant refused to vacate, it was entitled to an order for possession. For the Landlord to succeed on this claim it would have been obliged to demonstrate to the Rentalsman at the hearing that: (a) the tenancy agreement was one for monthly tenancy such that notice provisions of s. 25(1) are applicable; (b) written notice was served on the Tenant “not later than the last day of any month of the tenancy to be effective on the last day of the immediately following month of the tenancy”; and (c) the notice contained the minimum requirements of s. 23(1) namely, signed with the premises identified and the date set out upon which the termination is effective. [9] These provisions do not require the Landlord to have cause or disclose cause. [24] agree with the views expressed by Foley J. [25] few additional issues remain. There is written rental agreement, but the evidence would indicate that it was signed by only one tenant and not by the Landlord. The statutory conditions set out in s. 20 of the Act were not included in the rental agreement. [26] And finally, after the notice to vacate was served on the tenants they brought an application pursuant to the Act concerning certain repairs to the premises. The hearing was held and the decision was rendered on that application prior to the hearing on the question of the right of the Landlord to obtain writ of possession. Is the Rentalsman entitled to refuse to issue writ of possession, relying on subsection 47(5.1) of the Act on the basis that the Landlord is in contravention of an order of the Rentalsman in these circumstances? What is the relevance of the Landlord’s assertion that it did not have notice of this hearing? [27] Neither the Landlord nor the tenant were in position to address these issues on the hearing of the appeal. [28] I direct that the matter be remitted to the Rentalsman for a rehearing upon proof of service of the Notice of Hearing on all of the tenants. [29] There will be no order as to costs.

This is an appeal by the landlord pursuant to s. 49 of The Residential Tenancies Act from a decision of the Deputy Rentalsman who, pursuant to s. 47 of the Act dismissed an application by the landlord for a writ of possession. HELD: The matter will be remitted to the Rentalsman for a rehearing upon proof of service of the Notice of Hearing on all of the tenants. 1) The tenants who are named in the decision are Vernon and Ivy. There is no reference to Richie whose name appears on the tenancy agreement. 2) Even though the decision states that the Notice of Hearing was properly served, that cannot be the end of the matter given that there is nothing in the file which would indicate any directions having been given to the landlord with respect to service other than personal service. Ivy and Richie did not appear at the hearing and the decision does not even identify Richie as being one of the tenants. More is required to ensure service of and notice to all the tenants. 3) There are no notes nor is there anything in the decision which would permit the Court to conclude that the issue of service on Ivy and Richie was ever considered by the Rentalsman. The matter must be returned to the Rentalsman for a rehearing upon proof of service of the hearing on all of the tenants.

d_2007skqb18.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 265 Date: 2013 07 05 Docket: Q.B.G. No. 707 of 2013 Judicial Centre: Saskatoon IN THE MATTER OF S. 72(1) OF THE RESIDENTIAL TENANCIES ACT, 2006 BETWEEN: GLENKO PROPERTIES INC., and DIANE WYSHYNSKI, and THE OFFICE OF RESIDENTIAL TENANCIES, Counsel: Davin R. Burlingham for the appellant No one appearing for the respondents JUDGMENT LAING J. July 5, 2013 [1] The appellant landlord appeals a decision of the Residential Tenancies hearing officer on the following two questions of law: a) That the Hearing Officer misinterpreted ss. 19(1)(g)(iii) of The Residential Tenancies Act, 2006 in finding that the tenancy agreement was not fixed-term agreement, and thereby committed an error of law; and b) That the Hearing Officer misinterpreted ss. 8(2) of The Residential Tenancies Act, 2006 in finding that the landlord’s efforts at mitigation were not reasonable within the meaning of that section and that the landlord is legally disentitled to compensation pursuant to s. 8(1) of the Act, and thereby committed an error of law. [2] The tenancy commenced on April 1, 2012. The term of the lease stated as follows: TERM For term of 12 months from the 1st day of April, 2012 to the 31st day of March, 2013 and continuing thereafter from month to month until the tenancy is terminated by one of the parties giving to the other party notice in writing not later than the last day of any month of the tenancy, to be effective on the last day of the immediately following month of the tenancy. The respondent vacated the unit on or about October 30, 2012. The monthly rental was $2100. [3] The respondent gave written notice to landlord to terminate the tenancy dated September 18, 2012 in which she advised she was terminating the tenancy and giving up possession of the premises on the 31st of October, 2012. The appellant did not attempt to rent the premises following his receipt of the notice, because he had decided to furnish the unit prior to re-renting it. He testified he spent approximately $15,000 on furnishing the unit and made the decision to do so because in his opinion it would be quicker and easier to re-rent to better clients. The appellant did not advertise the unit for rent until the middle of January 2013 and obtained new tenant effective February 1, 2013 at $2500 per month, which was $400 more than when the apartment was unfurnished. [4] Section of The Residential Tenancies Act, 2006, S.S. 2006, c. R‑22.0001 (the Act), which addresses tenant’s liability for not complying with the Act or tenancy agreement states: 8(1) If landlord or tenant does not comply with this Act, the regulations or their tenancy agreement, the non-complying landlord or tenant must compensate the other for any damage or loss, including loss of rent paid or payable, that results. (2) landlord or tenant who claims compensation for any damage or loss that results from the other’s non-compliance with this Act, the regulations or their tenancy agreement must do whatever is reasonable to minimize the damage or loss. THE HEARING OFFICER DECISION [5] With respect to whether the tenancy was for fixed term the hearing officer referred to s. 21 of the Act which states: 21 If written tenancy agreement does not contain the information mentioned in subclause 19(1)(g)(iii), the tenancy is deemed to be periodic tenancy on monthly basis. Section 19(1)(g)(iii) states: 19(1) written tenancy agreement must comply with any prescribed requirements and must contain all of the following: (g) the agreed provisions respecting the following: ... (iii) if the tenancy is fixed term tenancy, the date the tenancy ends. Section 2(d) defines “fixed term tenancy”. It states: (d) “fixed term tenancy” means tenancy under tenancy agreement that specifies the date on which the tenancy ends. The hearing officer concluded that because the term of the lease provided for month‑to‑month tenancy following the end date of the tenancy described in the term clause there was no certain date in the tenancy agreement for the end of the tenancy and it was not therefore fixed term tenancy, but month-to-month tenancy for which proper one month’s notice had been provided by the respondent. [6] The hearing officer in the alternative stated that if she was in error in this respect and it was fixed term tenancy, the fact the appellant did not advertise the premises for lease after receiving the September 18, 2012 notice from the respondent meant he did not within the meaning of s. 8(2) “do whatever is reasonable to minimize the damage or loss”. For this reason the appellant failed to prove any entitlement to rent revenue loss. She held that if the landlord had commenced advertising the unit immediately after receiving the notice the unit may have been re-rented for November 1, 2012. She also noted the fact that it was rented at $400 per month more commencing February 1, 2013. She concluded the appellant had failed to prove entitlement to any rent revenue loss, and the application was dismissed. [7] With respect to whether or not the lease was for fixed term, the wording of the lease indicates it is for fixed term of one year from April 1, 2012 to March 31, 2013, and may thereafter be continued on month‑to‑month basis. The fact that an indefinite term follows the fixed term of one year does not detract from the fact that the respondent was committed to the fixed term of one year at the time she gave notice to terminate the lease on September 18, 2012. similar wording to this lease was upheld as fixed term lease in the case of Morguard Residential Inc. v. Adams, 2005 ABPC 271 (CanLII), [2005] A.J. No. 1259 (QL), at para. 4, where it was noted: “The aforesaid Residential Tenancy Agreement or lease was fixed‑term tenancy agreement which terminated April 30, 2004. It also provided that month‑to‑month tenancy could follow the primary term. ...”. I conclude the hearing officer erred in law in holding that the fact a month‑to‑month tenancy would follow the primary fixed term negated a fixed term. The one-month notice provision referred to in the term of the lease was applicable only if the tenancy was extended to a month-to-month tenancy following the end of the fixed term. [8] With respect to the hearing officer’s conclusion the appellant had failed to mitigate its loss with respect to the respondent’s early notice of termination of the tenancy, counsel for the appellant relies on the case of 10113307 Saskatchewan Ltd. v. Mattison, 2012 SKQB 22 (CanLII), [2012] S.J. No. 22 (QL), decision in which Gerein J. noted, “A failure to minimize damage or loss does not eliminate an entitlement to compensation; rather it mandates an adjustment in the amount of compensation. This is the effect of s. 8(2) of the Act.” The remarks of Gerein J. were appropriate on the facts of the case he was considering, where the hearing officer concluded the fact the tenant had not complained to the landlord about the noise was failure to mitigate disentitling him to any compensation. The facts in this matter are quite different. The question in this matter for the hearing officer, was would there be any loss if the appellant had done what was reasonable to minimize his loss. [9] At common law, the onus is on defendant to establish failure to mitigate on the part of the plaintiff. Vide: Nikulak v. Finnson, [1991] S.J. No. 491 (QL) (C.A.). The effect of s. 8(2) of the Act quoted above, reverses this onus and places the same on the person claiming the loss. It was therefore the appellant who had the obligation to show that he did whatever was reasonable to minimize his loss. [10] While the appellant gave evidence before the hearing officer that September was difficult time to rent the premise in question, the fact is he did not try, because he had decided it would be better going forward to have furnished premise for rent. This decision was made not with respect to the possibilities of renting an unfurnished premises as of September 19, 2012, but was a macro decision based on his business going forward. None of this macro decision can be attributed to the respondent. To put the matter in perspective, if the appellant had not chosen to make the change to furnished premises and had simply waited until November to start advertising the suite for rent, and thereafter had found tenant in the next six weeks, there would be no difficulty in concluding he had failed to take reasonable steps to minimize his loss. The fact that he chose to convert the premise to furnished one does not alter the foregoing reasoning. In the absence of any evidence the hearing officer was not in position to guess whether the premises would have been leased within six weeks or not, and if so whether it would have been leased at the same rent. [11] The appeal is allowed with respect to the fixed term issue, and dismissed with respect to the claim for loss. [12] Judgment accordingly.

The appellant landlord appealed a decision of the Residential Tenancies hearing officer. The tenancy in question had commenced in April 2012. On September 18, the tenant had given six weeks' notice of her intention to terminate the tenancy. The term of the lease stated that it was for a term of 12 months (April 2012 to March 2013) and continuing thereafter from month to month until one of the parties gave one month's notice. The appellant did not try to rent the premises following receipt of the notice because he had decided to furnish the unit prior to re-renting. He spent $15,000 doing so and advertised the unit in mid-January, increasing the rent by $400 and obtained a new tenant as at February 1. Although it is not stated what relief the landlord sought from the Office of Residential Tenancies, the hearing officer stated in the decision that the lease was a month-to-month tenancy. The appellant argued that the hearing officer made errors in law in that he 1) misinterpreted s. 19(1)(g)(iii) of the Residential Tenancies Act, 2006 in making that finding, as the lease was for a fixed term; and 2) misinterpreted s. 8(2) of the Act in finding that the landlord's efforts at mitigation were not reasonable within the meaning of the section and the landlord was legally disentitled by s. 8(1) of the Act. HELD: The Court held that the hearing officer had erred in law in finding that the lease was for a month-to-month tenancy. The one-month-notice provision only applied if the tenancy was extended beyond the fixed term. The appeal was allowed on this issue. The Court found that the decision of the landlord to furnish the premises was a business decision, and the result of this decision could not be attributed to the tenant. The Court dismissed the appellant's claim for loss.

b_2013skqb265.txt

P.C.J. 1999 SKQB 167 Q.B.C.A. A.D. 1999 No. 11 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: TRACY GARDNER APPLICANT (APPELLANT) and HER MAJESTY THE QUEEN RESPONDENT D. M. Rask for the appellant (accused) T. B. MacNab for the Crown JUDGMENT NOBLE J. November 2, 1999 [1] The appellant appeals his conviction before His Honour Judge B. Goldstein on February 18, 1999 that:he did on or about the 20th day of April, A.D. 1998 at or near Saskatoon, Saskatchewan having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres 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] In his judgment, the learned judge below outlined the relevant facts of the case in these terms: It was in the wee hours of the morning, on April 20, 1998, when two paramedics, having transported patient to the Saskatoon medical facilities were on their way home to Spiritwood in their ambulance when they espied vehicle that was parked on the 51st Street ramp on Idylwyld or highway the highway attached thereto or extending therefrom. This vehicle was parked in such manner with its lights on, one light on, and in such position, some four to ten feet away from the travelled portion of the road, that it attracted the paramedics’ attention. There is no dispute that the automobile found on the 51st Street ramp was parked as indicated, and there is no dispute that the accused was intoxicated.... (Transcript of proceedings of decision and sentencing, Volume II, at p. 148) To supplement the learned judge’s remarks, it is relevant to note that the appellant’s vehicle was discovered by two ambulance attendants (paramedics) on their way back to Spiritwood when they noted it parked in an unusual place on the 51st Street ramp leading to the provincial highway going north. [3] The learned judge first considered whether the appellant was caught by the presumption of care and control of his vehicle pursuant to s. 258(1) of the Criminal Code, R.S.C. 1985, c. C-46 which, briefly stated, holds that where it is proven an accused occupies the seat normally occupied by the operator of the vehicle, it is presumed he is in care and control unless he can establish that he did not occupy the seat for the purpose of setting the vehicle in motion. [4] That was the precise situation that the ambulance attendants (and the police officer they summoned to the scene) came across when they approached the appellant’s vehicle to investigate. [5] The learned trial judge first considered whether or not the appellant had rebutted the presumption on s. 258(1) and concluded that he had successfully done so. He put it this way: ... These decisions have been most helpful in leading me to the conclusion that on the evidence, the accused initially having entered his vehicle for the purpose of driving, did, in fact, abandon that purpose, [sic] was subsequently found behind the wheel of the car. And accordingly the accused, hold, has established, by the requisite preponderance of evidence, that he did not then occupy the seat for the purpose of setting the car in motion. (Transcript of proceedings of decision and sentencing, Volume II, at p. 150) [6] Having reached that conclusion, the learned trial judge quite properly dealt with the next question, namely–had the Crown on the evidence before him established by credible evidence beyond reasonable doubt that the appellant (notwithstanding that he had rebutted the presumption) was nevertheless in de facto control of the vehicle to the point that he performed some acts which involved the use of it or its fittings or some other cause of conduct which might put the vehicle in motion so that it could become dangerous to other users of the roadway where it was parked? [7] This issue which is dealt with in such well known cases as R. v. Ford (1982), 1982 CanLII 16 (SCC), 65 C.C.C. (2d) 392 (C.C.C.) and R. v. Toews (1985), 1985 CanLII 46 (SCC), 21 C.C.C. (3d) 24 (S.C.C.) was then explored by the learned trial judge in light of the evidence before him. set out below the relevant portions of his judgment in this regard: What is the evidence of de facto control of motor vehicle in this case? The medical emergency medical personnel, Lisa Opraman, testified at page 15 as follows: Did this individual, the driver, know that you’d called the police? No. We didn’t really say anything. We felt it was better not to, just because in our past experience if you say that they tend to want to leave or deny different things, so we just chose not to because of [sic] this individual did want to drive away. Tell us about that? Well, he did try and start his vehicle couple of times. don’t know why he didn’t. We convinced him not to, but he did grab for the wheel, and that’s when we did notice there was [sic] keys in the ignition. At first we couldn’t see, but then when we actually started talking to him and he then we could hear the jingle of the keys. We talked him into not starting his vehicle. Okay. You say “we”? Jason and myself. Okay. And you say he reached and tried to start? To try and start it. His vehicle, couple of times? Yes, he did. Then we have the evidence of the other medic, Jason Trask, at page 43. At the top of the page, in answer to question the witness said: He said he just wanted to keep going. think he reached for the keys once, which were still in the ignition. We didn’t let him turn on the vehicle, so he was making efforts to leave the scene by the looks of it, so of course we couldn’t let him do that. When you say, ‘reach for his keys’ specifically, in that regard, what did you observe him do? Well, the keys were still in the ignition. The car was shut off. He reached up for the keys, kind of as if into [sic] grab them, to turn them on, like. Okay. You’re making gesture with your hand. Maybe you can make that to the court so we could make some sort of reference to what you’re describing? Sure. He just kind of reached for the keys, and he was trying to turn it forward. You’re twisting your wrist as if [sic] one would do if they were turning keys on in the ignition? To start vehicle, yeah. Okay. Was he able to start the vehicle? We wouldn’t let him. He didn’t physically we didn’t physically restrain him, but we said, ‘No, don’t do that, just kind of wait. We can’t let you drive away.’ Was the vehicle, when the twisting motion occurred, was there did the ignition turn? Did the engine turn over or anything like that? He didn’t turn it far enough to get to get up the starter. It was just kind of one click, kind of, for the accessories to come on, like the radio-type thing, if remember correctly. The accused himself was very candid about what took place. Primarily he realized that he was so impaired, he stated that he couldn’t remember precisely, but as best he could remember this is his evidence question, on page 82: Okay. And one more time then, when these people arrived, what steps did you take then with the vehicle at that point? And that’s referring to the medical emergency people arriving. None at that time until they requested that turn the vehicle off, not go anywhere. Okay. And what steps again did you just And then when I’m shutting the vehicle off, if I’m taking it from idling, I’m always putting it in gear just before shut it off. Well that doesn’t really tell us anything. He was asked: Do you recall making any attempts to start your engine again? don’t recall doing that, no. And at page 91: And is it your testimony and this is in cross-examination that when the EMT’s which stands for emergency medical technicians or the ambulance personnel first arrived, and do you have recollection of them waking you up? What’s the first thing you remember? Just them at the window or at the door. Okay. And this is your testimony or your recollection that your vehicle, at that point, the engine is actually running? Yes. Is it possible that it wasn’t running at the time? think it was running. Further down on page 92: So you’re saying that actually they tell you to turn off the car? You stick the your foot on the clutch and put it into gear, first gear, would [sic] guess? Usually first gear is the one stick it in. That’s the natural to do; right? Yeah. Put it into first gear, and then what did you do? Well, usually I’d be shutting it off and then putting into gear would be what would have done. Now, in answer to “what would have done”, counsel for the Crown wanted to pin that down to actually not “what you might have done” or but what did you do, so she goes on at page 94: Okay. So, if I’ve got you correct, if could just summarize here your vehicle was parked at this location. It’s running. You used, manually used your foot to depress the clutch; is that right? And there was no audible response to that so she goes on: Maybe I’ll just get you to at each point your vehicle is parked and it’s running is your testimony? Yeah. You use your hands to turn off the ignition; is that correct? Yes. At some point you might have turned the ignition back on with your hands; is that correct? Correct. At some point you would have depressed the clutch with your foot, with your left foot; is that correct? Correct. At some point you may have put it into first gear and released the clutch; is that correct? Yes. At some point you engaged in the emergency brake, you think you might have? Yes. Well, he’s not too sure, but he says he might [sic] done this, but then we have the evidence of the police officer, Constable Faber, who testified that he found the key in the ignition at the “on” position, not in the accessories position of the vehicle, but on the “on” position. On the basis of the foregoing, cannot help but conclude that the accused did, in fact, exercise care and control of his motor vehicle subsequently to being discovered behind the wheel thereof. The accused is found guilty of count two of the Information. (Transcript of proceedings of decision and sentencing, Volume II, at pp. 151-56) [8] Counsel for the accused advanced spirited argument that the evidence outlined by the learned judge did not justify the conclusion that the Crown had established proof of “care and control” beyond reasonable doubt. For example, he attacked the evidence of the two ambulance attendants that the accused sought to start the vehicle after they woke him up. He submitted first that the ignition key was not on the steering column but next to it on the dash of the vehicle. As result, so he argued, the attendants were mistaken about his wanting to start the vehicle. He also contends that the vehicle had standard transmission and that the appellant, if he was attempting to start the vehicle as the attendants claimed, would have to depress the clutch with his left foot and there was no evidence that he had done so. [9] It is clear from the learned trial judge’s acceptance of the evidence of the ambulance attendants and that of the police officer who came along later, that he rejected the theory the appellant’s counsel advanced. He was perfectly entitled to do so. In my view, the location of the ignition key was not relevant, given the fact it was located somewhere on the right side of the steering wheel. The appellant had much different story. For example, he thought the vehicle was running when he woke up but the learned trial judge, even though he appreciated the candid evidence he gave, clearly understood that the appellant’s memory of the events was far from clear given the level of his intoxication. He clearly accepted the evidence of the ambulance attendants and the police officer over the accused’s version of what took place. [10] In my opinion, the learned trial judge was entitled to accept and rely on the evidence of the Crown witnesses to support the conviction. [11] Accordingly it must stand and this appeal is dismissed.

An appeal of a conviction for having the care or control of a motor vehicle after consuming in excess of 80 milligrams of alcohol in 100 millilitres of blood contrary to s.253(b) and s.255(1) of the Criminal Code. Although the trial judge concluded the appellant rebutted the presumption in s.258(1)(where it is proven that an accused occupies the seat normally occupied by the operator of the vehicle, it is presumed he is in care and control unless he can establish that he did not occupy the seat for the purpose of setting the vehicle in motion), the appellant was found to be in de facto control. HELD: The appeal was dismissed. It was clear from the trial judge's acceptance of the evidence of the two paramedics who had noted the car parked in an unusual place and police officer who came along later, that he rejected the theory advanced by the appellant's counsel. The location of the ignition key was not relevant. The appellant's memory of the events was far from clear given the level of his intoxication. The trial judge was entitled to accept and rely on the evidence of the Crown witnesses.

b_1999skqb167.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 399 Date: 2006 08 25 Docket: Bankruptcy No. 13803 Estate No.: 22-031205 Judicial Centre: REGINA, IN BANKRUPTCY AND INSOLVENCY IN THE MATTER OF THE BANKRUPTCY OF THE PROPOSAL OF SHANE PAUL SABOURIN BETWEEN: PIONEER GRAIN COMPANY LIMITED and SULLIVAN ASSOCIATES INC. Counsel: Carson Demmans for Pioneer Grain Company Limited Robert C. Magnusson and for the Trustee, Sullivan Associates Inc. Jillian M. Drennan, Student-at-Law FIAT ALLBRIGHT J. August 25, 2006 [1] The applicant, Pioneer Grain Company Limited, seeks from the Court an order pursuant to Rule 30(1) of the general rules under the Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 setting aside the decision of the registrar dated July 20, 2006, upholding the disallowance of the claim of Pioneer Grain Company Limited, as a secured creditor in the proposal of Shane Paul Sabourin. Additionally, the applicant seeks an order pursuant to Rule 30(2) of the general rules under the Bankruptcy and Insolvency Act under s. 187(11) of The Bankruptcy and Insolvency Act extending the time for the bringing of this appeal. [2] On the occasion of the hearing, counsel for the respondent, Sullivan Associates Inc., consented to the extension of the time for the bringing of the appeal, and accordingly the issue relates to whether the applicant has demonstrated basis for the order sought under Rule 30(1) of the Bankruptcy and Insolvency Act. [3] By way of background, on February 3, 2004, Shane Paul Sabourin granted Pioneer Grain Company Limited security interest in all of his present and after acquired property. Pioneer Grain Company Limited then filed proof of claim in the proposal of Shane Paul Sabourin setting forth their position as secured creditor based on security agreement dated February 3, 2004. [4] Thereupon, Sullivan Associates Inc., in their capacity as the Trustee of the proposal of Shane Paul Sabourin disallowed the claim of Pioneer Grain Company Limited as secured creditor in Notice of Disallowance of Claim, Right to Priority or Security dated June 7, 2006. [5] On July 20, 2006, the registrar issued decision upholding the disallowance of the claim of Pioneer Grain Company Limited as secured creditor in the proposal of Shane Paul Sabourin. [6] It is the position of the applicant that in doing so, the registrar erred in law by holding that the unperfected security interest of Pioneer Grain Company Limited did not qualify Pioneer Grain Company Limited as secured creditor in the proposal. [7] The registrar in bankruptcy issued formal judgment dated July 20, 2006, and the eight page judgment sets forth in detail the background to the disputed issue, and canvasses the submissions of the applicant and the Trustee, and then provides an analysis leading to the registrar’s conclusion. [8] The registrar defines the issue in the following terms: “Should the applicant be permitted to make claim as secured creditor under the debtor’s proposal?” Under the registrar’s background assessment, the following facts are relevant: [3] The debtor filed proposal on May 18, 2006. The proposal has been approved by the debtor’s creditors. [4] The debtor executed security agreement with the applicant on February 3, 2004. The security agreement was not registered until May 30, 2006. [5] The trustee, after conducting the necessary property searches with the applicable registries, disallowed the applicant’s claim for the following reason: The security agreement dated February 3, 2004 in all of the debtor’s past and after acquired property was not registered pursuant to The Personal Property Security Act prior to the date of the debtor’s Proposal on May 18, 2006. [8] The trustee is of the opinion that the proposal will not be viable if the applicant’s claim is allowed to rank as secured claim. Court approval of the proposal has been adjourned pending the outcome of this appeal. [9] The registrar identifies the appropriate provisions of the Bankruptcy and Insolvency Act and of The Personal Property Security Act, 1993, S.S. 1993, c. P-6.2. As noted, the judgment then canvasses the submissions of the applicant and the Trustee. The registrar’s judgment under the heading “Discussion and Analysis” concludes as follows: [19] find myself in agreement with the majority of the submissions of the trustee. Proposals should be encouraged as an alternative to bankruptcy. In order to do so certainty must be part of the equation. Certainty can only be achieved if there is definitive date to determine the claims of creditors. To permit otherwise and endorse what the applicant has done in this situation would basically spell disaster for the efficacy of the proposal process. It would be virtually impossible for trustee to make recommendations and for creditors to make reasoned decisions if the ranking of creditors’ claims could change post filing date. For this reason prefer to utilize section 62.(1.1) as the basis for upholding the trustee’s decision. On May 18, 2006 the trustee had confirmed that the claim of the applicant was not perfected. The trustee’s only choice at this point was to permit the applicant’s claim as unsecured. The applicant’s contention that the debtor knew it had secured claim is not compelling. The trustee is statutorily charged to determine the claims of creditors. This can only be accomplished by the trustee performing various registry searches relevant to fixed date to determine the ranking of creditors. The proposal is developed based upon the trustee’s due diligence in this regard and recommendations are made to the creditors concerning the viability of the proposal. [20] am also of the view that the registration of the security agreement by the applicant subsequent to the date the proposal was filed was contrary to the statutory stay provision as set out in section 69(1)(a) of the BIA. It is undisputed that leave was not obtained for this purpose. [21] word about the trustee’s primary argument that section 20(2)(a) of the PPSA should be utilized to uphold the trustee’s decision. [22] agree that section 66.(1) of the BIA can and should be used when required to make efficient use of the proposal process. also agree that the application of this provision would permit the trustee to utilize both sections 135 and 72(1) of the BIA to efficiently complete the trustee’s duties when determining the claims of creditors. respectfully depart from the trustee’s analysis on the utilization of this provision to permit court to read into section 20(2)(a) of the PPSA that it applies to proposals. would submit that this goes beyond the scope of section 66.(1). In short, the trustee’s analysis that permits court to get to the PPSA is correct but the submission that section 20(2)(a) of the PPSA is applicable to proposals is not supported by the legislation. This can only be accomplished by an amendment to that section. [23] In conclusion, the applicant’s appeal of the disallowance of its claim as secured is dismissed. The trustee did not request costs and none will be awarded. [10] In reviewing the registrar’s judgment, it is clear that he succinctly and accurately sets forth the facts of the matter and to that end there has been no complaint regarding the judgment. [11] Further, I have considered the registrar’s analysis in this matter and can find no fault with his reasoning. The registrar’s interpretation is supported by the legislation and based upon the undisputed facts which he found, the interpretation is reasonable. [12] Accordingly, there has been no reason demonstrated to set aside the adjudication of the registrar and accordingly decline to do so. As he had done, make no order as to costs. J. G. N. Allbright

FIAT: The applicant applies for an order pursuant to Rule 30(1) of the general rules under the Bankruptcy and Insolvency Act setting aside the decision of the registrar upholding the disallowance of the applicant's claim as a secured creditor in the proposal. HELD: In reviewing the registrar's judgment, it is clear that he succinctly and accurately set forth the facts of the matter and that to that end there has been no complaint regarding the judgment. The court considered the registrar's analysis in this matter and can find no fault with his reasoning. The registrar's interpretation is supported by the legislation and, based upon the undisputed facts which he found, the interpretation is reasonable. The application is dismissed.

4_2006skqb399.txt

J. F.S.M. A.D. 1997 No. 96 J.C. R. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE MINISTER OF SOCIAL SERVICES AND H.B. AND R.B. RE: R.J.B., Jr. L. Sandstrom-Smith on behalf of the Minister of Social Services I.D. McKay, Q.C. on behalf of the Public Trustee JUDGMENT ARCHAMBAULT J. November 3, 1997 The Minister of Social Services has applied for anorder that the Public Trustee be served with notice of aprotection hearing and act as litigation guardian for H.B. H.B. is the mother of the child, R.J.B., Jr., born January 5,1995, and is alleged to be of "unsound mind". The child was apprehended at birth and is currently the subject of child protection hearing. In support of his application the Minister relies on The Public Trustee Act, S.S. 1983, c. P- 43.1 as amended, and, alternatively, on the court's inherent parens patriae jurisdiction. The application is opposed by the Public Trustee who takes the position "that it is not the appropriate party to act as the litigation guardian on behalf of H.B." and that "The Public Trustee Act does not give the Public Trustee the jurisdiction to represent an adult under mental disability in cases other than where property interest is involved". The relevant sections of The Public Trustee Act are the following: 32(1) Where it is necessary to serve any court process on person who may be of unsound mind and who has no property guardian, whether or not that person is dependent adult, the person seeking to effect service may make an application to the court, and the court may direct that service be effected by delivering copy of the process to the public trustee or to any other person the court considers to be suitable. (2) The public trustee or the person directed to be served pursuant to subsection (1) shall act as litigation guardian of the person alleged to be of unsound mind: (a) in the case of the public trustee, after 30 days from the date of the order made pursuant to subsection (1); (b) in the case of any other person directed to be served, from the date service of the court process is effected; unless the court otherwise directs. 44 Where the public trustee is served under this Act with notice of an application to court, he shall take the steps or proceedings he considers necessary or advisable for the protection of the person on whose behalf he is served. 44.1 An appointment of the public trustee by the court pursuant to this or any other Act may not be made until: (a) the public trustee has had the opportunity to make representations respecting the appointment; or (b) the public trustee consents to the appointment. While the wording of s. 32 is somewhat ambiguous, inmy opinion the Public Trustee is right in asserting that theAct does not authorize it to represent an adult under mentaldisability in cases other than where a property interest isinvolved. That becomes more evident (although not crystal clear) when s. 32 is considered in the context of the entire Act. It is intended to authorize the Public Trustee to protect and administer the property of infants and dependant adults. Nowhere does the Act authorize the Public Trustee toact as the personal guardian of a dependant or mentallyincompetent adult. Hrabinsky J. came to similar conclusion in Re: S.L.R. [No. 2] (1993), 1992 CanLII 7824 (SK QB), 104 Sask. R. (Sask. Q.B.). At pages and he stated: In certain jurisdictions Public Trustees have by statute been given specific authority to represent infants and dependant adults in matters affecting their person as well as their property. This is so in British Columbia by virtue of s. 2(2) of the Public Trustee Act, R.S.B.C., c. 348, and in Manitoba by virtue of s. 80 of the Manitoba Mental Health Act, R.S.M., c. M-110, and s. of the Public Trustee Act, R.S.M., P-275. In this jurisdiction there is no equivalent statutory provision giving the Public Trustee authority to represent infants in matters affecting their persons. conclude that the Public Trustee Act, S.S. 1983, c. P-43.1, gives the Public Trustee statutory mandate to represent infants where specifically described property interest arises but nothing in the Act gives the Public Trustee jurisdiction to represent an infant in cases other than where property interest is involved. Queen's Bench Rules 22(1)(b) and 46 provide as 22(1) Except where otherwise provided, document may be served on an individual: (b) who may be of unsound mind and who has no guardian with authority to commence, defend, compromise or settle any legal proceeding relating to the person or the estate of the person, as the case may be, by leaving copy with: (i) the Public Trustee; or (ii) any other person the court considers suitable; pursuant to section 32 of The Public Trustee Act; 46(1) Unless otherwise ordered or provided person with respect to whom an order has been made under The Dependant Adults Act or, person under mental disability, other than minor, may commence, continue or defend an action by litigation guardian. (2) For the purposes of this rule, "litigation guardian" means: (a) property guardian appointed pursuant to The Dependent Adults Act with authority to commence, defend, compromise or settle any legal proceeding that relates to the estate of the dependent adult; (b) personal guardian appointed pursuant to The Dependent Adults Act with the authority to commence, defend, compromise or settle any legal proceeding that does not relate to the estate of the dependent adult; (c) the property guardian of person in respect of whom certificate of incompetence has been issued and is in effect pursuant to The Mentally Disordered Persons Act; (d) until the court orders otherwise; (i) the Public Trustee; or (ii) any other person the court considers suitable; who has been served pursuant to section 32 of The Public Trustee Act on behalf of person who may be of unsound mind and who has no guardian with authority to commence, defend, compromise or settle any legal proceeding relating to the person or the estate of the person, as the case may be; (e) the litigation guardian of minor who has reached the age of majority; or (f) any other person appointed by the court. These Rules are intended to ensure that dependent adult or person of unsound mind is properly and fairly represented in any litigation: Szwydky v. Magiera (1989), 71 Sask. R. 273 (Q.B.) and Regina and District Association for Community Living Inc. v. Public Trustee of Saskatchewan (1992), 1992 CanLII 8172 (SK QB), 99 Sask. R. 274 (Q.B.). It is significant that the inclusion of the Public Trustee in the definition of litigation guardian (paragraphs 46(2)(d) and 22(1)(b)) are circumscribed by reference to s. 32 of The Public Trustee Act. Therefore the Rules do not enlarge the provisions of the Act and cannot serve as the basis to appoint the Public Trustee as litigation guardian to represent the personal interests as opposed to the property interests of dependent adult or person under mental disability. To the extent that there is conflict (if such there be) between The Public Trustee Act and Queen's Bench Rules 22 and 46, the Act must prevail. I, therefore, conclude that The Public Trustee Actdoes not authorize the appointment of the Public Trustee toact as litigation guardian for H.B. in the matter of the childprotection proceedings concerning her son, R.J.B., Jr. However that does not fully determine the issue. The Minister contends that the court can and should appoint the Public Trustee as litigation guardian for H.B. in the exercise of its inherent parens patriae jurisdiction. The Supreme Court of Canada in the case of Re: Eve (1987), 1986 CanLII 36 (SCC), 31 D.L.R. (4th) made it clear that superior court of general jurisdiction, such as our Court of Queen's Bench, has continuing parens patriae jurisdiction. At p. 17, LaForest J. states: It continues to this day, and even where there is legislation in the area, the courts will continue to use the parens patriae jurisdiction to deal with uncontemplated situations where it appears necessary to do so for the protection of those who fall within its ambit. And at p. 28: The parens patriae jurisdiction is, as have said, founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the "best interest" of the protected person, or again, for his or her "benefit" or "welfare". The situation under which it can be exercised are legion; the jurisdiction cannot be defined in that sense. As Lord MacDermott put it in J. v. C., [1970] A.C. 668 at p. 703, the authorities are not consistent and there are many twists and turns, but they have inexorably "moved towards broader discretion, under the impact or changing social conditions and the weight of opinion .". In other words, the categories under which the jurisdiction can be exercised are never closed. Thus agree with Latey J. in Re X, [(a minor), [1975] All E.R. 697] at p. 699, that the jurisdiction is of very broad nature, and that it can be invoked in such matters as custody, protection or property, health problems, religious upbringing and protection against harmful associations. This list, as he notes, is not exhaustive. No one has applied to be appointed as litigation guardian on behalf of H.B., nor as amicus curiae. Furthermore it was determined by the Department of Social Services that there were no family members or other individuals willing or able to seek guardianship appointment. Pursuant to itsparens patriae jurisdiction, this Court has a responsibilityto protect the interests of H.B.; she requires independentrepresentation to ensure that her rights are protected (see:Re: Eve, supra, and S.L.R. [No. 1] (1993), 1992 CanLII 8052 (SK QB), 104 Sask. R. 81). If the court fails to intervene in this regard, H.B. will beleft in limbo, a victim of the system. The Public Trustee in this province has acted in number of child protection cases to protect the interests of mentally deficient parent who is unable to act on his/her own behalf. It would appear that in each case the Public Trustee consented to act and as result was appointed by the court to act as litigation guardian. In my opinion, the Public Trustee is the appropriate person to act as litigation guardian for H.B. Not only does the Public Trustee have the capability and competence to properly and fairly represent her but, as well, is indifferent as to the outcome of the proceedings. The Public Trustee best fits the criteria enunciated by Wright J. in Szwydky v. Magiera, supra. Besides, no one else has come forward to fulfill that role. It is therefore my intention to appoint the Public Trustee as amicus curiae to act on behalf of H.B., upon being satisfied that she is unable to act for herself. In this regard have ordered an assessment pursuant to s. 32 of The Child and Family Services Act, S.S. 1989-90, c. C-7.2. Anorder will issue accordingly unless the Public Trustee, within10 days from the date of this order, shows cause as to why itis not the appropriate party to so act. There shall be no order as to costs.

The Minister of Social Services applied for an order that the Public Trustee be served with notice of a protection hearing and act as litigation guardian for H.B. who was alleged to be of unsound mind. H.B.'s child born in 1995 was apprehended at birth and was currently subject of a child protection hearing. The Minister relied on the Public Trustee Act and, alternatively, on the court's inherent parens patriae jurisdiction.HELD: The Public Trustee was appointed amicus curae to act on behalf of H.B. upon being satisfied she is unable to act for herself. An assessment was ordered pursuant to s32 of the Child and Family Services Act. The order was to issue unless the Public Trustee shows cause as to why it is not the appropriate party within 10 days from the date of this order. 1)While the wording of s32 is ambiguous the Public Trustee was correct that the Act does not authorize it to represent an adult under a mental disability other than where a property interest is involved. Nowhere does the Act authorize the Public Trustee to act as personal guardian of a dependant or mentally incompetent adult. The PT Act does not authorize its appointment as litigation guardian in the matter of child protection proceedings. 2)Pursuant to its parens patriae jurisdiction the Court has a responsibility to protect the interests of H.B. who requires independent representation to ensure her rights are protected. If the court failed to intervene H.B. will be left in limbo, a victim of the system.

3_1997canlii11384.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2004 SKCA 60 Date: 20040423 Between: Docket: 852 Agrevo Canada Inc. Applicant/Proposed Appellant and City of Regina and Saskatchewan Assessment Management Agency Respondents/Proposed Respondents Between: Docket: 867 Acklands-Grainger Inc. Applicant/Proposed Appellant and City of Regina and Saskatchewan Assessment Management Agency Respondents/Proposed Respondents Before: Lane J.A. (in Chambers) Counsel: Robert G. Richards, Q.C. for the Applicant/Prospective Appellants Byron Werry for the Prospective Respondents Application: From: Assessment Appeals Committee of the Saskatchewan Municipal Board Heard: March 24, 2004 Disposition: Allowed in part Written Reasons: April 23, 2004 By: The Honourable Mr. Justice Lane LANE J.A. [1] The applicant applies for leave to appeal a decision of the Assessment Appeals Committee of the Saskatchewan Municipal Board on a question of law pursuant to s. 33.1 of The Municipal Board Act. [2] The test on such an application requires there exist question of law or question concerning the jurisdiction of the Board, doubt whether the Committee’s decision is correct, or there is question of such broad importance as to warrant the attention of the Court. [3] The test has been articulated in Shalk v. The City of Regina et al.,[2] by Chief Justice Bayda as follows: As have noted, leave to appeal may be granted if two prerequisites are satisfied. The question must be one of law. It must be one that merits the consideration of the Court. There is no doubt that in the present case the first prerequisite is satisfied. The questions as have recast them are clearly questions of law. It is the second prerequisite that causes the difficulty. For question to be sufficiently meritorious to place before the Court either the judge hearing the application for leave must have doubt, if not serious doubt, about whether the tribunal appealed from correctly decided the question, or the question must be of such broad importance that it deserves the attention of and the determination by higher authority irrespective of whether the judge has any doubt about the correctness of the tribunal's resolution.[3] The test in such applications must be strictly applied when the applicant seeks to appeal an assessment. In Regina (City) v. Gordstone Enterprises Ltd.,[4] Justice Cameron said: During argument on the motion informed counsel for the City that was not prepared to grant leave to appeal in relation to the procedural grounds and the issues of process to which they give rise. Since this Court's decision in Regina (City) v. Laing Property Corporation (1994), 1994 CanLII 4690 (SK CA), 128 Sask.R. 29, and the line of cases that followed, the system for review of assessments has undergone significant change in structure and practice. Currently, each of the reviewing bodies seems to have reasonably clear view of its function, genuine willingness to perform that function along the lines envisioned by the legislation, and an appropriate measure of deference for one another's decisions, as well as those of the Assessor. So basically, and in general, the system may be seen to be functioning properly. That being so, there is far less room now than there used to be for obtaining leave to appeal in relation to process‑oriented issues. This is especially so in light of the standards by which leave applications are determined. hasten to add that the door may still be opened, but the key to opening it is demonstrable case of concrete and material failure, particularly as it may relate to the general, though not necessarily so confined. The key certainly does not lie in speculative, abstract, or harmless failures of process related to the particular. Raising issues of that sort only adds to what are often substantively burdensome applications, making it more difficult to knife through to the core and hence more difficult to obtain leave.[5] The onus of establishing the ground is on the appellant.[6] [4] The applicant contends there are five questions of law and sets them out in the following manner: (a) Did the SMB err in failing to find that, by aggregating market adjustment factor (MAF) groups for purposes of determining the existence of abnormal, obsolescence for size, the Assessor contravened the Manual and, in particular, contravened Document 4.1.5? (b) Did the SMB err in failing to find that, by using invalid sales for determining abnormal obsolescence for size, the Assessor contravened the Manual and, in particular, contravened Document 1.1.6? (c) Did the SMB err, and act contrary to the Manual, particularly Document 4.1.5 thereof, by conflating trend analysis applicable to land size multiplier calculations with the analysis prescribed in the Manual for determining abnormal economic obsolescence? (d) Did the SMB err, and act contrary to the Manual, particularly Document 4.1.5 thereof, by failing to find that the Assessor should have used the comparable unit method of analysis in determining whether an adjustment for obsolescence for size should be applied to the Appellant’s property? (e) Did the SMB err, and contravene The Urban Municipality Act and the Manual, by finding that the Appellant had not discharged its onus of proof or, alternatively, by imposing an improper and unreasonable standard of proof on the Appellant? [5] The issues raised by the applicant relate to abnormal obsolescence for size and the refusal of the Assessor to apply abnormal obsolescence to the owner’s property. The issues also relate to some 15 other properties and as the issues are the same for each property they were decided by the Assessment Appeals Committee on one appeal. The Assessment Appeals Committee dismissed the appeals, finding the issue not to be matter of the Assessor’s discretion but matter of professional interpretation of data. The Committee found the Board of Revision did not err in its decision to dismiss the appeals and found the Board did not err on the issue of abnormal obsolescence for size. [6] At the outset I will dispose of two grounds: the use of invalid sales, and the alleged improper onus or standard of proof. On the first of these grounds I would deny leave on the basis the question of the sale is a question of fact and in argument the applicant said for its purposes the impugned sale did not matter. Further on perusal of the record the Assessor was fully aware the sale was portfolio sale, had contacted both the vendor and the purchaser, and provided particulars of the sales verification form as part of the evidence to the Board. [7] With regard to the issue of standard of proof I am not satisfied the Committee made any error and the issue has been decided by this Court. Leave to appeal this ground is denied. [8] In my view the issue of the aggregation of the MAF neighbourhoods merits consideration by the Court. The Assessor had determined the specific MAF neighbourhoods based on industrial property sales. The applicant contends that determination was necessary because the market operated differently in each neighbourhood and the properties in those neighbourhoods had to be segregated in order to value them accurately. However in determining the existence of abnormal obsolescence for size the Assessor worked on the basis of aggregated sales from different MAF neighbourhoods. The applicant contends that the factor of economic obsolescence is considered when the Assessor determines the MAF for each neighbourhood. The MAF in given neighbourhood might capture all of the economic obsolescence with the result there is no abnormal economic obsolescence, but on the other hand, the MAF might capture only some of the economic obsolescence such that the abnormal economic obsolescence could be significant factor. The applicant argues it is inappropriate to investigate the existence of abnormal obsolescence for size by doing broad inquiry which combined sales from many different MAF neighbourhoods. Whether the Manual should be read as requiring assessors to consider abnormal obsolescence for size on MAF group by MAF group basis or whether the approach taken by the Assessor is correct can be considered by the Court. [9] The applicant contends the use of “trend analysis” is appropriate to determine adjustments for size in the assessment of land but it is not an appropriate methodology to be used for the assessment of improvements. The Committee did not view the matter as one of assessor discretion but saw it as matter of professional interpretation of data. The respondent contends the statistical testing referred to in the land section of the Assessment Manual simply arises from the knowledge of statistical science and standard testing that is part of the professional judgment and expertise of the Assessor. The Assessment Manual does not preclude the use of standard statistical testing tools to conduct analysis. In my view no error has been demonstrated and no question of law arises. Leave to appeal this ground is denied. [10] Whether or not the Assessment Appeals Committee erred by failing to consider the “comparable unit method” pursuant to Document 4.1.5 of the Assessment Manual is linked to the issue of the aggregation of MAF neighbourhoods and leave to appeal on that ground is granted. [11] Leave to appeal is thereby granted on the following two questions of law: (1) Did the Committee err in its interpretation and application of the Saskatchewan Assessment Manual by failing to find that economic obsolescence for size must be categorized on MAF by MAF basis?; and (2) Did the Committee err by failing to find the Assessor should have used the comparable unit method to determine whether an adjustment for obsolescence for size should be applied to the applicant’s property? [12] Costs are left to the discretion of the panel hearing the matter. DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of April, A.D. 2004. LANE J.A. [1]S.S. 1988-89, c. M-23.1. [2][2000] S.J. No. 764 (Sask C.A.)(Q.L.); 2000 SKCA 140 (CanLII). [3]Ibid. [4][2003] S.J. No. 224 (Sask C.A.)(Q.L.); 2003 SKCA 36 (CanLII). [5]Ibid. [6]Canadian Midwest District of the Christian and Missionary Alliance Church v.Regina (City), 2002 SKCA 134 (CanLII).

The applicant applies for leave to appeal a decision of the Assessment Appeals Committee of the Saskatchewan Municipal Board on a question of law pursuant to s. 33.1 of the Municipal Board Act. The issues raised by the applicant relate to abnormal obsolescence for size and the refusal of the Assessor to apply abnormal obsolescence to the owner's property. The issues also relate to 15 other properties and as the issues are the same for each property they were decided by the Assessment Appeals Committee on one appeal. The Assessment Appeals Committee dismissed the appeals, finding the issue not to be a matter of the Assessor's Discretion but a matter of professional interpretation of data. The Committee found the Board of Revision did not err in its decision to dismiss the appeals and found the Board did not err on the issue of abnormal obsolescence for size. HELD: Leave to appeal was granted on two questions of law. 1) Did the Committee err in its interpretation and application of the Saskatchewan Assessment Manual by failing to find that economic obsolescence for size must be categorized on a MAF by MAF basis? 2) Did the Committee err by failing to find the Assessor should have used the comparable unit method to determine whether an adjustment for obsolescence for size should be applied to the applicant's property? 3) On the use of invalid sales leave was denied on the basis the question of the sale is a question of fact and in argument the applicant said for its purposes the impugned sale did not matter. 4) Leave to appeal was denied on the issue of the standard of proof that there was no error demonstrated.

5_2004skca60.txt

CANADA PROVINCE OF NOVA SCOTIA S.H.No.77388 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: The Arbitration Act, R.S.N.S.1989 Ch.19; BETWEEN: WILLIAM MOSHER, BRYSON WILSON, TERRY BOURGEOIS AND COLIN A. LYE; members of the City Firefighters Benevolent and Protective Association Local 268, International Union of Firefighters; and CITY OF HALIFAX and CITY FIREFIGHTERS BENEVOLENT AND PROTECTIVE ASSOCIATION, LOCAL 268 INTERNATIONAL UNION OF FIREFIGHTERS RESPONDENTS HEARD BEFORE: The Honourable Mr Justice Walter R.E.Goodfellow PLACE HEARD: Halifax, Nova Scotia DATES HEARD: May 23rd and 24th 1991 COUNSEL: Ms Mary O. Hebb, counsel for the applicants Ms Kimberley Turner, counsel for the union Gerald Goneau, Esq., counsel for the City of Halifax DECISION OF THE COURT DISCUSSIONS AND DECISION RE COSTS: 1991 S.H.No.77388 IN THE SUPREME COURT OF NOVA SCOTIA TRIAL DIVISION IN THE MATTER OF: The Arbitration Act, R.S.N.S. 1989 Ch 19; BETWEEN: WILLIAM MOSHER, BRYSON WILSON, TERRY BOURGEOIS and COLIN A. LYE; members of the City Firefighters Benevolent and Protective Association Local 268, International Union of Firefighters; and CITY OF HALIFAX; and CITY FIREFIGHTERS BENEVOLENT AND PROTECTIVE ASSOCIATION, LOCAL 268 INTERNATIONAL UNION OF FIREFIGHTERS RESPONDENTS GOODFELLOW, J. (Orally) would like to thank counsel for their assistance in this matter and bear with me as work my way through my notes. This is the matter of William Mosher, Bryson Wilson, Terry Bourgeois and Colin A. Lye and the City of Halifax and also the City Firefighters Benevolent and Protective Association, Local 268 International Union of Firefighters. The applicants filed an application May 6th 1991 by Originating Notice (Application Inter Partes) seeking an order setting aside an arbitration award made by S. Bruce Outhouse, Q.C., which award is dated April 4th 1991 and was completed May 3rd 1991. Hearings in the arbitration matter were held in Halifax, November 27th 1990; January 18th 1991 and February 1st 1991. The grievance arose and was brought forward through arbitration pursuant to collective agreement between the parties dated September 29th 1988. The union alleges that the employer violated Article 23.01 of the collective agreement by the manner in which the employer conducted promotional routine for the position of lieutenants in the Halifax fire department for 1989. It appears that the Halifax fire department does not conduct job competitions for individual vacancies in the ranks of lieutenant and captain, but rather holds promotional routines, so‑called, with respect to these positions, every two years. Promotional routines have been based, at least since 1975, exclusively on written tests under the 1989 lieutenants' promotional routine, which was also provided for with an oral interview. Deputy Chief Bernard George Elliott was cross examined on his affidavit of the 9th of May 1991. He acknowledged in 1989 promotional routine that 60% of the mark was based on the oral interview. Deputy Chief Bernard George Elliott was member of the promotional routine board for lieutenants in 1989. Now the application for review is still outstanding and will be heard, and what is before me is an application for stay. The application for stay was originally phrased under Civil ProcedureRule 62 and issued preliminary ruling indicating that only dealt with matters before the appeal court and not this court. Jurisdiction however, clearly lies in this court under the JudicatureAct of ... Statutes 1989, Chapter 240, Section 41 which states: Rules of law 41 In every proceeding commenced in the Court, law and equity shall be administered therein according to the following provisions: (e) no proceeding at any time pending in the Court shall be restrained by prohibition or injunction but every matter of equity on which an injunction against the prosecution of any such proceeding might have been obtained prior to the first day of October, 1884, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto provided always that nothing in this Act contained shall disable the Court from directing stay of proceedings in any proceeding pending before the Court if it or he thinks fit, and any person, whether party or not to any such proceeding who could have been entitled, prior to the first day of October, 1884, to apply to the Court to restrain the prosecution thereof, or who is entitled to enforce by attachment or otherwise any judgment, contrary to which all or any part of the proceedings have been taken, may apply to the Court thereof by motion in summary way for stay of proceedings in such proceeding either generally, or so far as is necessary for the purposes of justice and the Court shall thereupon make such order as shall be just; So there is no question that the court has jurisdiction. have read all the affidavits and material provided and am going to review through my notes, the evidence, primarily that of the cross examination. On first blush, the affidavit of Bernard Elliott the Assistant Fire Chief for the City of Halifax Fire Department, and of Paul Hopkins Captain in the Halifax Fire Department, indicate substantial number of the members of the Fire Department were immediately affected by the arbiter's ruling. For example, in paragraph 7(a) of his affidavit, Bernard Elliott referred to the 1989 lieutenant's promotional routine and that the same process was used for the 1989 captain's promotional routine. The latter has been grieved by the union, however, the only matter before the court is the arbitrator's award which dealt solely with the 1989 lieutenant's promotional routine. In paragraph 7(b) of his affidavit, he recites that the employers sought to use the demoted lieutenants in an acting capacity until new routine is to be devised. He went on to express that the employer had serious reservations about using inexperienced acting lieutenants. It is clear that since Bernard Elliott swore his affidavit, that notice went out effective May 10th 1991 structuring the use of the demoted lieutenants as acting lieutenants. One of the demoted lieutenants has elected to return to the rank of fire fighter and continue as such. However, the other seven have the opportunity and are acting from time to time as acting lieutenants. The concern with respect to using inexperienced personnel has at least dissipated if not entirely disappeared, at least in the short run. In paragraph (c) of his affidavit, Bernard Elliott referred to telephone conference with the union President David Boulton, indicating that the union President expressed the view that up to fifty fire fighters would be moved within the platoons. Bernard Elliott concedes that this is based upon the ripple effect which would include similar finding if such turns out to be the case in the grievance with respect to the 1989 captain's promotional routine, the 1991 lieutenant's promotional routine, and the 1991 captain's promotional routine. He concedes the number that is immediately adversely affected is much smaller and will be primarily the seven who are demoted who are now from time to time acting lieutenants, and some ripple effect, but of very limited nature in the short run. The movement that might have been brought about if those who were demoted could not act as acting lieutenants, and were required to return to the platoons in which they were, prior to being promoted, has not materialized and is not likely to materialize in any real measure until after this matter has been heard. It is anticipated that the present directions with respect to the utilization of the demoted lieutenants in their present positions will be adhered to, at least in the short run. Those who have been demoted do suffer the loss of uniform rank and some loss of pay. The difference between fire fighter's pay and lieutenant's pay is somewhere in the range of $2,500.00 per annum and the month and half before the matter will be heard, or perhaps longer if it has to go to September, the loss in their gross basis is somewhere in the range of $260.00 month and that will be offset by whatever the individual receives for the periods of time that he acts as lieutenant. One difference is they will not receive lieutenant's pay on regular basis, as acting lieutenant's pay is paid in November of each year and then further payment in January for the preceeding December to complete the payment, for all those who have held acting rank during the previous calendar year. In real terms, it is not significant loss but it is one that obviously each of the members and their families will feel, and the loss of promotion does have pride factor effect on the morale of the individuals and on their families. Captain Paul Hopkins was cross examined on his affidavit sworn 8th May 1981. In paragraph two of his affidavit he refers to being informed by the President of Local 268, David Boulton, that the union and management are of the view that if the decision in the Outhouse Arbitration is implemented (that decision dealing only with 1989 lieutenant's promotional routine) that all fire fighters from the 1989 captain's routine and the 1991 lieutenant's and captain's routines will be demoted or lose their eligibility to be promoted. Further in paragraph three, he says, this procedure will affect 32 fire fighters and others, giving total of about 50 fire fighters. Captain Hopkins confirms he had two conferences with the union President, one at the World Trade and Convention Centre and one at the Police Association Club, both were prior to the 3rd of May, that is, prior to the award clarification where it is clearly acknowledged that the Outhouse Arbitration dealt solely and exclusively with the 1989 lieutenant's promotional routine and there are separate grievances outstanding for the 1989 captain's promotional routine and the 1991 lieutenant's promotional routine. Captain Hopkins under cross examination concedes that the global demotions that may well have been anticipated have not yet materialized and that the numbers we are dealing with on an immediate basis are the eight demoted lieutenants. He does indicate that there will be some vacation periods that are altered and some vacation concerns flowing immediately from the Outhouse Arbitration Award. Captain Hopkins admits on cross examination that there are number of matters and affidavits, such as the contents of paragraph 11 dealing with the collective agreement, that are outside the present arbitration award that is under appeal. heard the evidence also of the applicant, Mr Bourgeois, he is an acting lieutenant at the present time in the training division, he was promoted the 3rd or 4th of June 1989 and in cross examination he agrees that before the first day of the hearing he saw the grievance itself, exhibit #2, and it was never stated to him that he would not get promoted and he was under the impression he would not likely come off the list. He acknowledges that he received the letter prior to the grievance from the union solicitor and that he was on notice his promotion could be set aside, and he did not see any requirement of any further clarification. He engaged Elwin MacNeil and had him contact the arbitrator. want to refer to the correspondence between counsel for Bourgeois and the arbitrator. Mr Bourgeois and Mr Mosher, if remember correctly. The letter from Mr MacNeil, MacNeil Associates, December 4th 1990 to Mr Outhouse confirms his engagement on behalf of Bill Mosher and Terry Bourgeois and he outlines series of questions with respect to the grievance that had already got underway. The response from Mr Outhouse, the arbitrator, is dated December the 6th, it was dictated December the 5th and it refers in paragraph five, in response ... (5) The question which have to determine, as you are well aware from your experience in these matters, is whether the promotional routine was conducted in manner which violates the collective agreement and, if it was, what consequence or remedy flows from that. As stated in the preceding paragraph, don't believe that the fundamental issue raised by the grievance has changed in any way since it was first lodged with the Employer and there have been no amendments of which am aware. That paragraph incorporates and makes reference to paragraph four of the letter to the counsel for Messrs. Mosher and Bourgeois and reads as follows: (4) don't believe your clients' understanding that only the suitability aspect of the testing procedure was being challenged by the grievance is correct. am enclosing for your information copy of the grievance form and, as you can see, personal suitability is but one of the several issues raised thereby. Moreover, as far as I'm aware, the enclosed grievance is the original and hasn't been amended. In essence, in summary of cross examination, Mr Bourgeois admitted that he had copy of the grievance, that he received the letter from the solicitor ... and I'll refer to that ... letter dated November 22nd 1990 and I'll read the second and third paragraph on the first page and the receipt of this letter is acknowledged by Mr Bourgeois. The Union is alleging that the carrying out of the promotional routine in 1989 was contrary to the provisions of the collective agreement. If the Union is successful in this matter, it could result in the rankings of the promotional routine being changed, and could result in the rescinding of any appointments pursuant to that list. Individuals who have been appointed to the position of Lieutenant since the list could therefore lose their positions. The next paragraph went on to recite the date, time and place and an indication that you're entitled to be present at the hearing and if desired, to be represented by counsel of your own choosing, at your own expense. In addition, as indicated, he hired Mr MacNeil and Mr MacNeil received the advice very clearly that it was far more involved than the suitability aspect and he knew of his opportunity to participate in the hearing. Now, with respect to his position, he is in the training division and there is not whole lot of difference between his position at the present time than what it was prior to the arbitrator's award. Mr William Mosher was cross examined, he also was promoted on the 1989 routine list, believe he came first and was promoted June 28th 1989. He has been in an acting capacity since the implementation of the arbitration award and he is now the administrative assistant, which is new position, administrative assistant to the Chief, it's non‑union position, temporary. The estimate would be somewhere in the range of six months to year. He was asked when he was first aware of the grievance and he said it was several months after the routine, but well prior to the arbitration. He received the letter the date of the hearing and he retained Mr MacNeil along with Mr Bourgeois. He in fact attended the hearing and was given full opportunity to participate and indeed, the arbitrator made the offer to commence the proceedings afresh and repeat everything that had transpired the day before. His main objection is, and his view is that the arbitrator awarded more than what was asked for, but in many respects his dispute is against the union. Bryson Wilson was also cross examined, he was promoted September the 7th 1990 from the 1989 list. He was aware that grievance had been filed, although he's never seen copy of it, of the grievance itself, which think is exhibit #2. He was fourth on the list of 1989. He acknowledges receipt of the letter which quoted in dealing with one of the applicants, and no need to quote it again, from Ms Kimberley Turner, he acknowledges receiving that prior to the arbitration hearing. He did not attend the arbitration hearing and he made the assumption that he would rely upon the city, but chose not to make any contact with the city. He admitted in cross examination, he knew that he could quite possibly 'lose my job.' With respect to paragraph nine of his affidavit, which reads: THAT was senior driver with the Platoon and to roll back my promotion to the previous status quo will mean am transferred back to Platoon from Platoon and that another driver will have to be bumped back, losing both status and salary, to make room for me. He acknowledges that has not yet happened and he assumed, when he swore the affidavit that that would take effect, and he referred to the domino effect. He agrees that paragraph eleven is not quite accurate and he has no assurances with respect to continuing in the acting rank. The last witness cross examined was Colin Lye, think he was fifth in the competition, was promoted November 1st 1990 and he was in fact promoted after he knew the grievance was in effect, and he says: believe have seen copy of the grievance but can't remember when. He acknowledges he received the notice, the letter from Kimberley Turner, prior to the grievance and it was correct that his promotion could be set aside. In paragraph seven of his affidavit he acknowledged receipt of that letter, his evidence is that it was day or two days before the hearing, but in any event he did receive it and he knew his promotion could be set aside. With respect to the conflict of interest allegation that is advanced, this witness indicated and confirmed to the court that the grievance was launched before either of the gentlemen were elected to their present position on the executive. The final witness that was cross examined was David Boulton, the President of the Union, cross examined on his affidavit sworn the 9th of May 1991. He referred, and was cross examined with respect to the union minutes of October the 23rd 1990 and he gave his explanation as to the inaccuracy of those minutes, but obviously those minutes would have some impact on anyone reading them, as to what was the position of the union, but point out that they were October 23rd 1990. He was cross examined particularly in paragraphs nineteen and thirty‑seven and did not find any inconsistency between those paragraphs. He was asked what the union's position is with respect to the holding of new lieutenant's routines, particularly if this matter cannot be reviewed until September, and he was asked specifically would he grieve it, and he indicated he had not thought of it yet. When pressed, he gave his own personal opinion that he had put it on hold and that if the city pursues and forces the routine and promotions before the matter is reviewed, that you could end up with bigger mess. With respect to the City of Halifax, all have is the representations ... the affidavit and representations of Mr Goneau. Now with respect to the application itself for stay, the law has been, in my view, set out very clearly in very recent decision of Mr Justice Hallett in Kendall W. Purdy and Fulton Insurance Agencies Limited, and at pages 11 and 12 Mr Justice Hallett set out the appeal court of this Province's view on the tests to be applied in an application for stay, and am bound to follow it. Mr Justice Hallett had this to say at page 11 of the unreported decision. review of the case indicates there is trend towards applying what is, in effect, the American Cyanide case for an interlocutory injunction considering applications for stays of execution pending appeal. In my opinion it is proper test as it puts fairly heavy burden on the appellant which is warranted on stay application considering the nature of the remedy, which prevents litigant from realizing the fruits of his litigation pending the hearing of the appeal. In my opinion, stays of execution of judgment pending disposition of the appeal should only be granted if the appellant can either; 1. Satisfy the court on each of the following: that there is an arguable issue raised on the appeal; that if the stay is not granted and the appeal is successful, the appellant will have suffered irreparable harm that it is difficult to or cannot be compensated for by damage award. This involves not only the theoretical consideration whether the harm is susceptible of being compensated in damages, but also whether if the successful party at the trial is executed on the appellant's property, whether or not the appellant if successful on appeal will be able to collect; that the appellant will suffer greater harm if the stay is not granted and the respondent would suffer if the stay is granted, so‑called balance of convenience. And he added: Or, failing to meet the primary test, satisfy the court there are exceptional circumstances that would make it fit and just that the stay be granted in the case. have reviewed all the documents and the evidence and am satisfied that the Purdy case, which would point out to counsel was stay of execution ... I'm sorry, stay with respect to summary judgment granted in Chambers, and that stay by Mr Justice Hallett was limited until that matter itself, that is, the interlocutory matter in Chambers, reached the appeal court, and the appeal court understand has now dealt with the issue; they have confirmed the summary judgment at which time Mr Purdy made further application for stay because there are still matters outstanding on his claim and on the counter‑claim, and believe the decision is that of Mr Justice Chipman who declined granting the stay. So the decision of Mr Justice Hallett, which is Chambers decision by him, if remember correctly, has in essence then been reviewed, although do not recall too much specific reference to it in the decision of Mr Justice Chipman, but there is decision down. Again, it is also unreported, it is three or four week's old. Now, on the first question of the arguable issue, Miss Hebb makes some very forceful arguments. There is no specific requirement of specific timeframe for notice and notice was given, notice was acknowledged. One member did get the notice the day of or the day after, have forgotten for the moment, and that is in my view, the closest you come to an arguable issue. Seems to me however that the purpose of notice is to give people an opportunity to participate and the opportunity to participate was provided to all four of the applicants here; the opportunity for the matter to start over again and while there is nothing specific in the correspondence from Mr MacNeil, for example, have little doubt that had. they wanted an adjournment of any kind that that could have been granted, because the spirit of the arbitrator was clearly one to provide them with the opportunity to exercise their rights which derive from receiving notice. With respect to irreparable harm, have already referred to the loss that would be suffered. It seems to me that as difficult as it is for these individuals who have done nothing wrong, that it is not in the category of irreparable harm, and so I then turn to the balance of convenience. My first indication when read the file before hearing counsel, or the cross examination, was that it affected such variety of people, substantial number of people within the department ... have forgotten specifically, think it was around 260 is the total complement of the fire department ... but in any event whatever number, had visions of having an immediate impact on fifty or more, there was fairly high percentage and that was of great concern to me. There is no doubt that it does not require much speculation on anyone's part to see that if the award is upheld and other awards are comparable, that that is the kind of problems that the department is facing, but those questions are beyond me, must deal only with the application before me and it is dealing with the 1989 lieutenants' one, and there are so many factors that have been addressed, the assistant Chief indicated ... think his evidence was to the effect at least, he did not anticipate any change in the direction of using them as acting lieutenants, and it seems to me that the opinion of the President of the Union, Mr Boulton, was imminent good common sense. The union as at the moment remains silent, he gave no undertaking because matters of that nature have to be dealt with by the union, it is collective decision and not personal decision of the President, but would certainly make good sense not to proceed with the routine until this matter in fact has been addressed. But in any event there is real catch twenty‑two situation involved, no matter what you do, people are going to be adversely affected. In my view, the balance of convenience weighs against the applicants. Then you come to the exceptional circumstances that would make it fit and just that a stay be granted in the case and I am unable to find exceptional circumstances of the nature that were found by Mr Justice Hallett. The end result therefore, is the decision of the court that the application must be dismissed. With respect to the hearing of this matter by way of review, undertook to counsel to speak to the Chief Justice. spoke to the Chief Justice. The case that she has personally on the 4th and 6th of June is still on the docket. am in the process of canvassing the judges to see if there is anyone available, but the docket is pretty heavy and personally leave for Sydney on the 3rd of June with our circuits it is pretty heavy right now, so cannot guarantee you. suggest to counsel they keep it open until Monday or Tuesday and although will be away, will have my secretary contact counsel and advise and will do so as soon as possible. am aware that Mr Boulton has his plans but if we get into balance of convenience that is price of being President of the Union. If no judge or courtroom or court facility is available on the 3rd and 4th of June, the Chief Justice has indicated make some effort to see if we can come up with an earlier date. would recommend that you exchange what dates are available to all of you over the next two and half months, you probably should put reserve on the September date in any event, and now am left with the matter of costs. My practice normally is to address costs rather than require counsel to go through any further exercise. will hear both of you with respect to the matter of costs and then will give ... ask one of you to communicate to the city to see what their view is. My present thinking with respect to the city would be that they should get, neither get or be responsible for any costs, but do not want to do anything in the absence of people, although Mr Goneau could have sent somebody here. What are your thoughts on costs Miss Kimberley Turner ...? MISS TURNER: Thank you My Lord. It's the union's position that the costs should go with this matter, alternatively it could go in the fall, the main application, but our preference at this point would be that it goes with this particular application which believe we set out in our written submissions. THE COURT: What are your disbursements? MISS TURNER: Our disbursements My Lord? THE COURT: Yes, how much are your disbursements? MISS TURNER: I'm afraid don't know My Lord, I'm sorry. THE COURT: Are they substantial? MISS TURNER: For this particular matter, probably not substantial. THE COURT: Miss Hebb, on the matter of costs? MISS HEBB: My Lord, the applicants would like to say that, and the submission of costs, that they brought the application in good faith believing that there were number of people affected and that without having any control over what the city might or might not do, and no assurances, and that ... in that instance, that costs be ... that no costs be awarded. If costs are to be awarded then we ask that perhaps they be costs in the cause. THE COURT: All right. The difficulty with costs in the cause, and it is something which am not in favour of, is that in the event Miss Hebb, if were simply to say costs in the cause, it would mean that if you were successful in the review you would get costs of today's hearing where you were unsuccessful, and it has always struck me when was in the trenches, that that does not wash with clients, it is not fair, so my practice is to set costs. It is Chambers matter but this is our third attendance here. Seems to me you take your chances when you go to court, seems to me that had the union been unsuccessful, quite legitimately your clients would look for costs. Party and Party costs are rather insignificant when there is no specific amount involved and am not going to get into the tariff, am treating it solely as Chambers matter and will award costs of $750.00. Anything further to be addressed counsel? COUNSEL TO THE COURT: No My Lord. THE COURT: That is subject to what representation Mr Goneau has with respect to the city's position, which have already indicated what it should be. Thank you counsel.

The applicants sought a stay of proceedings pending review of an arbitration award. The union had alleged the employer violated the collective agreement by the way positions for the rank of lieutenant were filled in the fire department two years prior. As a result of the arbitration award, several lieutenants were demoted to the rank of firefighter. Denying the stay, that (1) there was no arguable issue to be tried on appeal; (2) there was no evidence the applicants would suffer irreparable harm if the stay were not granted; (3) the balance of convenience weighed against the applicants; and (4) there were no exceptional circumstances.

b_1991canlii4359.txt

nan NOVA SCOTIA COURT OF APPEAL Citation: Dixon v. Nova Scotia (Public Safety), 15 Date: 20110203 Docket: CA 343192 Registry: Halifax Between: Delilah Delores Dixon and Peter Sheldon MacKinnon v. The Director of Public Safety Respondent Judge: The Honourable Justice David P.S. Farrar in Chambers Motion Heard: February 3, 2011, in Halifax, Nova Scotia Held: Motion granted. Counsel: Tony Mozvik and James Snow, for the appellants Glenn Anderson, Q.C. and Terry Potter, for the respondent Decision: [1] The appellants, Delilah Delores Dixon and Peter Sheldon MacKinnon, seek leave to appeal and appeal from the decision of The Honourable Justice Patrick J. Murray reported as 2011 NSSC 5 (CanLII) and Order dated January 18, 2011. [2] The order requires the appellants to vacate their home at 1437 Bay St. Lawrence Road, Aspy Bay, Nova Scotia, for a period of 70 days beginning at 12:01 p.m. on February 4th, 2011. [3] By notice of motion dated January 28, 2011, the appellants move for a stay of the provisions of the Order requiring that the premises be vacated. The stay is sought pending this appeal. [4] The appellants with their three children, D. age 7, T. age 4, and J.R. age reside at 1437 Bay St. Lawrence Road (the Property). [5] In July, 2010, they were served with a notice by the Director of Public Safety of an application for a community safety order under the Safer Communities and Neighbourhoods Act, S.N.S. 2006, c. 6 (the Act). The matter was originally scheduled to be heard on July 30, 2010, but was eventually adjourned and heard on October 6, 7, 13, 14 and 15th with the trial judge rendering written decision on January 6, 2011. As result of the trial judge’s decision, an order was issued on January 18, 2011, requiring the Property to be vacated on or before February 4, 2011, at 12:01 p.m. and enjoining the appellants from re-entering or re-occupying the property for period of 70 days. [6] The appellants seek leave to appeal and appeal from that Order alleging that the trial judge: 1. failed to properly interpret the meaning of the term “habitually used” as that term is used in s. 7(1)(a) of the Act; 2. failed to properly interpret the meaning of the term “reasonable inference” as that term is used in s. 7(1)(a) of the Act; and 3. failed to properly interpret s. 7(1)(a) and 7(1)(b) of the Act in regard to the need for community safety order. [7] The parties do not dispute that the test to be applied is based on the decision of Hallett, J.A. in Fulton Insurance Agencies Ltd. v. Purdy, [1990] N.S.J. No. 371 (Q.L.) (N.S.C.A.). The test has two parts. The applicant can be successful if it is established, on balance of probabilities, that there is an arguable issue raised by the appeal, irreparable harm to the appellant would occur should the stay not be granted (assuming the appeal is ultimately granted); and the appellant will suffer greater harm if this stay is not granted than the respondent if the stay is granted. [8] The Director of Community Services, in its brief filed in opposition to the motion has conceded, quite appropriately, the arguable issue part of the test and, therefore, need only consider the final two parts of the test. Irreparable Harm [9] In Alementary Services Ltd. v. Nova Scotia (Alcohol and Gaming Division), 2009 NSCA 61 (CanLII), Chief Justice MacDonald was considering situation where the Nova Scotia Utility and Review Board suspended the Split Crow Pub’s liquor license for two days as result of regulatory infractions. Chief Justice MacDonald granted the stay noting two reasons relating to irreparable harm as follows: nan In this motion, conclude that irreparable harm will result without stay. say this because of the cumulative effect of the following two factors. nan Firstly, am satisfied that without liquor license, the Pub will close its doors for the duration of the suspension. Its losses, while not impossible, would be difficult to calculate. Furthermore, should the appeal be allowed, it is unclear from whom if anyone these losses could be recovered. nan Secondly, without the stay, the suspension will have been served by the time the appeal is heard. This would effectively deny the Pub its right to appeal. [10] Similarly, I am satisfied, that the cumulative effect of the following factors leaves me to conclude that irreparable harm would result without a stay. [11] In the affidavit filed in support of the motion, the appellant, Ms. Dixon, deposes that her middle child, T., is autistic and attends North Highlands Elementary School, approximately 500 metres from their home. If she is forced to leave the home, T., because of her condition, she is unable to take the bus to school. She also says that the family does not have alternative living arrangements and would be forced to leave the community and remove the children from their present school. The potential damage to the children, and in particular, to T. being unable to attend school or in having difficulty getting to school cannot be measured in monetary terms. [12] Secondly, as in Alementary Services, supra, without the stay, the 70 day period for vacating the house will have been served by the time the appeal is heard. This would effectively deny the appellants their right to appeal. Balance of Convenience [13] The balance of convenience also favours the granting of stay. Again, without the stay, the appeal would be rendered moot. The balance of convenience also favours the children remain in their present school. [14] As well, there has been two interim orders in place, with conditions, since July, 2009, pending the trial decision in this matter, period of over five months. There is no evidence or suggestion that the orders have been breached or that there has been any harm to the community during that interim period. Taking these three factors into consideration am satisfied that the balance of convenience also favours the appellants. [15] I am prepared to grant the stay on the following terms and conditions: 1. paragraphs and of the Order are hereby stayed; 2. the date on which the stay ceases to be of effect is the issuance of subsequent order of this Court following the hearing of the appeal; 3. save and accepting the appellants, their three children and a babysitter, whose name shall be provided to the Director of Public Safety in advance, all persons shall vacate the Property each and every day from the hour of 11:00 p.m. and be enjoined from re-entering the Property each and every day until the hour of 6:00 a.m.; 4. service of this Order on the Appellants shall be deemed to have been effected upon its issuance; 5. costs of this motion shall be costs in the cause. 6. the remaining provisions of the Order remain in full force and effect. Farrar, J.A.

The appellants sought a stay pending their appeal of an order made under the Safer Communities and Neighbourhoods Act requiring them to vacate their home for 70 days. The had abided by the terms of an interim order placing conditions on their use of the home for more than five months. They gave evidence that move would force them to take their three children out of school and move to new community. Their eldest daughter is autistic and unable to take school bus. She can walk to school from this home. Stay granted, with conditions including a requirement that no one but the appellants, their children and an approved babysitter(s) be at the home between 11 pm and 6 am. Without a stay, the appellants and their children would suffer irreparable harm. The potential damage to the children can't be measured in monetary terms and without a stay, the issue would be moot by the time the appeal is heard. The balance of convenience favours a stay. The appellants have followed the conditions in the interim order(s). There is no suggestion the community has suffered harm during this time.

e_2011nsca15.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 58 Date: 20060518 Between: Docket: 1287 De Beers Canada Inc. (Plaintiff Applicant) Appellant and Shore Gold Inc., Cameco Corporation, UEM Inc. and Kensington Resources Ltd. (Defendants Respondents) Respondents Coram: Cameron, Gerwing Sherstobitoff JJ.A. Counsel: Robert S. Harrison and R.G. Kennedy, Q.C. for the Appellant Lenard M. Sali, Q.C. for the Respondent Shore Gold Kensington W.F. Hood and M. Deobald for the Respondents, Cameco and UEM Inc. Appeal: From: 2006 SKQB 154 (CanLII) Heard: May 18, 2006 Disposition: Dismissed (orally) Written Reasons: May 24, 2006 By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Gerwing SHERSTOBITOFF J.A. [1] The facts of this case, and the relevant provisions of the agreements in issue may be found in the reasons for judgment of the chambers judge, [2006 SKQB 154; [2006] S.J. No. 211] [2] All parties agree that this case turns on the interpretation of article XIV, subsection 14.01 of the joint venture agreement, which provides as follows: ARTICLE XIV TRANSFERS Section 14.01 RIGHT OF REFUSAL ON TRANSFERS If Party (denoted in this Article XIV as the "Vendor") shall wish to sell, assign, transfer, convey or otherwise dispose of all or part of its Participating Interest in the Program Lands or Project Area (herein called the "Offered Interest") (the Parties being absolutely prohibited from selling, assigning, transferring, conveying or otherwise disposing of any interest other than all or part of its Participating Interest) at any time during the currency of this Agreement, the other Parties hereto then having Participating Interest in the Program Lands or Project Area affected (hereafter in this Section 14.01 called the "Purchasers") shall be entitled to right of refusal in respect thereof as follows: (a) the Vendor shall first obtain from third party or third parties, which may include another Party to this Agreement, (herein collectively called the “Third Party”) an irrevocable offer to purchase the Offered Interest for cash, subject to the rights of the Purchasers pursuant to this Article (herein called the “Third Party Offer”); (b) the Vendor shall give written notice (hereafter called the "Offering Notice") to the Purchasers of the Vendor's desire to sell. The Offering Notice shall describe the Offered Interest that is offered for sale, and shall also state the cash consideration and other terms on which the sale and purchase is desired to be made by the Vendor to the Third Party. The Offering Notice shall have attached to it copy of the Third Party Offer; They also agree that the subsection is right of first refusal clause. It is clear that the subject matter of the clause is “Participating Interest in the Program Lands or Project Area.” [3] The appellant relies on the words in parenthesis “the Parties being absolutely prohibited from selling, assigning, transferring, conveying or otherwise disposing of any interest other than all or part of its Participating Interest” to establish its case that the voting agreement contravenes the terms of the joint venture agreement. [4] However, subsection 14.01, with the words in parenthesis deleted, creates complete right of first refusal. In our view, the words in parenthesis, rather than being intended to create substantial new contractual obligations, were intended, as is buttressed by the parenthetical structure, merely to recall to the parties their dedication of assets to the joint venture, and their inability to dispose of them qua separate assets. Thus, the phrase in parenthesis is mere surplusage in that it does not add or subtract substantively to subsection 14.01 or the joint venture agreement as a whole. Accordingly, the voting agreement is not caught by subsection 14.01. [5] In the alternative, if the parenthetical phrase is substantive provision creating new obligations and prohibitions, we would be required to consider the meaning of the term “interest” in it. The appellant urged upon us definition of the broadest possible nature, which would include any interest in or arising from the contract, and which, it argued, would include the right to vote attendant upon the ownership of Participating Interest. In our judgment, even if this broad definition were accepted, the voting agreement does not constitute disposition of the voting rights so as to constitute breach. [6] By way of background, there had been two alternate proposals for exploration and development, one by the appellant and one by the respondent Kensington, the latter being more expansive, proceeding more rapidly, and proceeding in different direction. The respondents Cameco and UEM preferred the Kensington plan and were prepared to commit themselves to it. They took the position that they had exercised their right to vote by entering into the voting agreement, rather than having sold their vote by so doing. The voting agreement secured the follow up steps under the original commitment by Kensington which would be implemented over lengthy period. We conclude that the voting agreement does not constitute sale of voting rights as contended by the appellant. It follows that we agree with the result reached by the chambers judge. [7] The appeal is dismissed with costs to be taxed.

All parties agree that this case turns on the interpretation of article XIV, subsection 14.01 of the joint venture agreement. They also agree that the subsection is a right of first refusal clause. It is clear that the subject matter of the clause is a 'Participating Interest in the Program Land or a Project Area'. HELD: Appeal dismissed orally. The appellant relies on the words in parenthesis 'the Parties being absolutely prohibited from selling, assigning, transferring, conveying or otherwise disposing of any interest other than all of part of its Participating Interest' to establish its case that the voting agreement contravenes the terms of the joint venture agreement. However, subsection 14.01, with the words in parenthesis deleted, creates a complete right of first refusal. In our view, the words in parenthesis, rather than being intended to create substantial new contractual obligations, were intended, as is buttressed by the parenthetical structure, merely to recall to the parties their dedication of assets to the joint venture, and their inability to dispose of them qua separate assets. Thus, the phrase in parenthesis is mere surplusage in that it does not add or subtract substantively to subsection 14.01 or the joint venture agreement as a whole. Accordingly, the voting agreement is not caught by subsection 14.01.

8_2006skca58.txt

J. Q.B.G. A.D.1994 No. 2946 J.C. R. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: S.S. JOHNSON SEEDS LTD. DEFENDANT D.G. Schirr Devon Page for the plaintiff C.M. Richmond for the defendant JUDGMENT HUNTER J. May 6, 1997 The plaintiff, S.S. Johnson Seeds Ltd. ("JohnsonSeeds"), claims damages from the defendant, Barry Farr("Farr"), for an alleged breach of contract. Johnson Seeds is Manitoba corporation, and operates out of Arborg, Manitoba, and currently has approximately 20 employees. Part of its business is the buying and selling ofspecialty crops such as canary seed, peas, lentils, canola,and flax. Johnson Seeds purchases specialty crops from producers and contracts with purchasers, including other traders or packagers, for the resale of these specialty crops. To secure the product for resale, Johnson Seeds will enter into contracts with growers prior to the seeding and harvesting of the same. Johnson Seeds attempts to have matching contracts for the quantum of specialty crops required with various producers with options for differing times of delivery to match the demand of the purchaser and to meet the delivery date requirements in the sales contracts. Always some flexibility is needed as the purchaser may alter the delivery times. As well, the crops must be cleaned to meet the delivery standard required and Johnson Seeds must organize the operation of the processing plant to meet the needs of the purchasers. Johnson Seeds has limited storage capacity so it is not possible for Johnson to take delivery from the growers as soon as the crops are harvested. When Johnson Seeds wants to take future delivery of the product then it usually must pay higher price to the producer because the farmer is then required to carry the cost of storing the product until Johnson Seeds takes delivery of the same. Farr is farmer in the Lewvan, Saskatchewan, area. He farms with his two sons, Jason and Jeff, and together they also operate chemical/fertilizer business and custom spraying business. Each year they farm approximately 10,800 acres. As part of their farming operation they grow specialty crops (which Farr refers to as their cash crops) which are important to the financial planning and management of their large farm operation. Because large purchases of chemical, fertilizer and fuel are made at the end of calendar year, they require approximately $500,000.00 in January and February of each year to meet their cash commitments. As well, land taxes are due in December of each year. From 1990 to October 1996, Murray Calcutt ("Calcutt"), was employed by Johnson Seeds as buyer. It was his job to find producers and enter into contracts to purchase their specialty crops to match the sales contracts entered into by Brian Johnson on behalf of Johnson Seeds. Part of his duties include attending farm shows where he will have the opportunity to meet growers and establish contacts within the grower community. Johnson Seeds annually has on average between 200 to 250 production contracts with growers. Brian Johnson has been involved in the business since 1975, and he is the managing director of marketing for Johnson Seeds. In 1993, Brian Johnson was president of the company. Johnson Seeds conducts its business throughout Canada and the world. Brian Johnson arranges the seller contracts. He stays in very close contact with Calcutt to advise on the price and quantity of seller contracts entered into so that Calcutt could arrange producer contracts at suitable prices and quantity. Before Calcutt could enter into production contracts he would require input from Brian Johnson on the call price and call date so that Brian Johnson could match it to the sales he had arranged. Brian Johnson did authorize Calcutt to enter into contracts for increased prices for delivery of product further out in recognition of the fact that the grower would have to bear the carrying charges for keeping the product for period of time after harvest. In January 1993, Calcutt attended the Crop Production Show in Saskatoon. Farr stopped by the booth of Johnson Seeds with another grower who did negotiate contract with Johnson Seeds at 10� per pound for the canary seed he expected to plant and harvest in 1993. Farr had never entered into these producer contracts but during his attendance at the show he decided to return to the Johnson Seeds booth and see if he might negotiate contract. Calcutt says that he was then entering into contracts to purchase canary seed at 1/2� per pound but that Farr wanted 10� per pound. Farr says that Calcutt was purchasing some contracts at 10� but that by the time Farr returned to the booth, Calcutt had no 10� contracts left. Farr says that he told Calcutt that he would need payment by January 2, 1994, and that Calcutt said they could not agree to that. Accordingly, no contract was concluded. In February 1993, while Farr and his sons were at Trade Show in Winnipeg they received the message that Calcutt wanted to talk to him. On the speaker telephone in the truck there were various telephone calls between Calcutt and Farr. Calcutt could offer only 1/2� for the canary seed but he was prepared to increase the price to 10� on specific calls. There were numerous telephone calls and Calcutt says that Farr finally agreed to this because he could cover his 10� price on the back-side of the contract. When Calcutt talks of the back-side of the contract he means the canary seed produced in excess of the amount that the producer has committed to sell under the producer contract to Johnson Seeds. Farr says the agreement proposed was that Calcutt would use later call and he could get Farr his money in January 1994 and he would pay 10� pound. The call would be stated in three phases with three prices. Farr said he was only interested in the 10� January price. Calcutt says that Farr was adamant about the 10� per pound price. Calcutt added clause to the standard form contract setting out three specific call times with three different call prices as follows: Pricing Sept Oct call .09 1/2� Nov Dec call .9 3/4� Jan Feb March. Call .10� However, despite this written portion of the contract, Calcutt admitted in cross-examination that 10� was the price Farr wanted to receive and that Calcutt had agreed that is the price Farr would receive not any of the other quoted prices. Brian Johnson testified that Calcutt had been pushing him to increase the number of "farther out" contracts (i.e. delay shipments of the product to Johnson Seeds). Brian Johnson authorized the farther out contract with Farr as it fit both with the plant capacity for processing the seed and it fit with the 1994 sales contracts Johnson Seeds had entered into. In the discussions that Brian Johnson had with Calcutt about the contract he was never advised of any specific delivery dates or dates for payment on the Farr contract. His only specific recollection is that the Farr contract was one of the contracts Johnson Seeds wanted farther out. Calcutt was to send contract out to Farr and he would have look at it. Farr had never entered into these forward contracts before so the use of the word "call" was unfamiliar to him. Calcutt then wrote up the contract and mailed it to Farr at Lewvan. He never received any signed copy of the contract back from Farr. This contract covered the first 500 pounds of canary seed produced per acre on 1,000 acres of the Farr land. Most of the Johnson Seeds contracts with producer are for 50 to 250 acres, so the Farr contract for 1,000 acres was significant. No contract arrived but Farr did not notice this oversight until near the end of May, 1993, when they were finished seeding the crops. Farr telephoned Calcutt and Calcutt, after checking with his superiors, advised that the contract was still available and he faxed copy of the contract to Farr. Farr understood Calcutt to say that the money would be to Farr by January 2, 1994, and that the price would be 10� per pound for the canary seed. Farr signed the contract and faxed signed copy to Calcutt. Calcutt says Johnson Seeds later received the original signed contract in the mail from Farr and that Calcutt then signed the same (P-3). Calcutt says he then sent copy of the contract which he had signed back to Farr through the office mail. The copy with the original signatures of both Farr and Calcutt were retained in the Johnson Seeds file. This is standard form contract used by Johnson Seeds since 1983. The paragraphs which are relevant are as follows: THIS AGREEMENT MADE IN DUPLICATE THIS "5" DAY OF "Feb", 19"93" between S.S. Johnson Seeds Ltd., hereinafter referred to as the Contractor, and "Barry Farr" of "Lewvan, Sk." hereinafter referred to as the Producer. WHEREAS the Contractor and the Producer have agreed to enter into contract for the purposes hereinafter set forth, subject to the terms, conditions and provisions hereinafter written: THEREFORE NOW in consideration of the mutual undertakings and obligations given and received by each of the parties hereto to the other, THIS AGREEMENT WITNESSETH AS FOLLOWS: 1. The Producer shall plant, tend, harvest and deliver to the Contractor and the Contractor shall accept from the Producer prior to the end of the 19"93" crop year all the Canaryseed produced on the land described as follows: 2. The Producer shall complete and return to the Contractor Seeding Report by June 30, 19"93". 3. The Producer shall deliver the entire crop to the Contractor. Gross weights of crop delivered will be determined immediately. The producer shall be responsible for rights, title, risk of loss and interest of the grain until such time as the grain has been delivered and grade established. The Contractor assumes responsibility for the grain upon completion of delivery and grade establishment. 4. After delivery, the Contractor will pay to the Producer for all of the pure, mature dry sound Canaryseed maximum "10%" moisture, on the basis of net cleaned weights at the rate of ".09 1/2" cents/pound for the first "500" pounds of production per acre against this contract. The impurities and hulled seed count shall be established by the Contractor in accordance with procedure and standards used by the Canadian Grain Commission and included as foreign material. Shrinkage of "1%" applies to unload weights. The Producer undertakes and agrees to pay for the said seed in one of the following ways: The Contractor may charge directly to the Producer any excess cleaning charges arising from delivery of Canaryseed containing in excess of 20% foreign material or other seeds which require special cleaning. The Contractor shall have the option for first refusal on the balance of production from the acreage assigned to this contract at fair market value at time of delivery. The Contractor's refusal will be confirmed in writing on or before July 31, 19"94" and upon receipt shall release the Producer from his obligation to deliver balance of production under this Contract. Pricing Sept Oct call .09 1/2� Nov Dec call .9 3/4� Jan Feb March. Call .10� Nothing further occurred until November 3, 1993, when Calcutt telephoned Farr to inquire whether they produced any overage on the contract because the price was going up. At that time Farr did not know his exact production as the canary seed was being held in crib annex at Sedley, Saskatchewan. Farr telephoned Calcutt to advise of the production. There was no overage above the contracted amount. Farr told Calcutt to get things arranged to pick up the canary seed because Farr needed the money by January 2, 1994. Calcutt indicated he understood Farr's request. In December 1993 when Farr confirmed the production with Calcutt he says that Calcutt said money could be advanced to Farr. Calcutt's evidence contradicts Farr. He says he next heard from Farr in November 1993 and he says that Farr called him to check on the prices on the back side of the contract. Calcutt produced his personal notebook he kept and the words in the notation were: November 3, 1993 "Farr 11 1/4� 11,000 bu over contract. Wants to hold now for better price." November 9, 1993 "Farr overage on contract. 15� 2-4000 bushels" There is no reference in the notebook to the words back side of the contract. Calcutt interprets his notations to mean that Farr had 11,000 bushels excess production over the contract amount and that he wanted to hold for better price than the current market price of 11 1/4�. Calcutt telephoned Farr on November 9, 1993, and offered him 15� per pound on the 2,000 to 4,000 bushels that Farr had in excess of the contract amount of production. In addition pink telephone message taken by someone in Johnson Seeds office noted telephone call from Barry Farr and said "back side of contract .15� 2-4000bu". The telephone records of Johnson Seeds show two brief telephone calls to the Farr number on November 3, 1993, for one and two minutes respectively. The telephone records for November 9, 1993, were not filed at trial. Calcutt says Farr agreed to the 15� offer and he thinks he would have told Farr that Johnson Seeds would pick up the canary seed on the back side of the contract the same time it took the call on the contract canary seed. Calcutt says he told Farr that Johnson Seeds was going to take the late call on the canary seed anyway and it would not take the early call. During cross-examination, Calcutt admitted that it was understood during the conversation of November 3, 1993, that Johnson Seeds would not call the contract until Farr could get 10� per pound, despite the written form of the contract. Calcutt made no entries in his notebook from December 24, 1993, to January 2, 1994. There were no other entries in the notebook of conversations held with Farr. As well, Calcutt was unable to locate his notebook that covered the periods January 1993 through to early September 1993. By the end of December, 1993, there had been no further contact by anyone at Johnson Seeds and no arrangements were made to take delivery of the canary seed. Farr was getting very anxious. He says he attempted to call the Arborg office few times before the new year but he could not get any answer. Farr was getting very anxious because they had already drawn down $300,000.00 on their $20,000.00 line of credit in anticipation of the fact that they would be receiving the $50,000.00 from Johnson Seeds on January 2, 1994, for the canary seed and they were expecting to be paid $175,000.00 for the lentils from Sedley Seeds. The person they needed from Sedley Seeds was away and they could not get any answer from Johnson Seeds. At this time Farr and his sons were looking at the contracts in an effort to find different telephone number for Johnson Seeds. At this time Farr noticed that they did not have any contract on their file that Johnson Seeds had signed. When they examined the clauses in the contract they noted clause 14 which states: 14. This agreement is not valid unless it has been signed by an officer of the Contractor on the line below, marked "S.S. Johnson Seeds Ltd.". Farr thought perhaps that because he did not have copy of contract signed by Johnson Seeds in his file that it was not valid contract. Farr telephoned to Sedley and Lajord to inquire as to the price of canary seed. Pioneer Grain at Lajord would purchase the canary seed for 22� per pound. Farr decided to sell the canary seed to Pioneer Grain and he arranged to have all the canary seed hauled to Lajord and sold on January 4, 1994. Farr sold 423,750.39 lbs of canary seed and he received $93,225.09. At the price he had contracted with Johnson Seeds, had he delivered under this contract at 10� per pound he would have received $42,375.04. After Farr sold the canary seed, he saw his lawyer the following day and letter was written on his behalf in which he purported to revoke his offer to sell the canary seed to Johnson Seeds. On or about May 26, 1993 Barry Farr submitted an offer to you for the sale of Canary Seed. To date Barry Farr has not received any response from you nor has he received copy of the contract executed by officers of S.S. Johnson Seeds Ltd. This letter is to advise you that Mr. Farr is hereby revoking his offer for sale of Canary seed to you. Please return all documents executed by Mr. Farr to our office. Calcutt responded by letter of January 7, 1994 as follows: We reply to your letter of January 5, 1994 relating to Barry Farr. Contrary to your statements about Mr. Farr not receiving an executed copy of the agreement he has received copy. The writer spoke to Mr. Farr on number of occasions after he acknowledged receipt and at his request delivery and payment was deferred until January 1994. If Mr. Farr is now seeking to break his contract we would regret this very much and cannot agree to him so doing as more than Mr. Farr's contract is involved. We are reluctant to become involved in substantial court expense but if we have to we will do so. We enclose copy of the executed agreement. Please advise of Mr. Farr's position since if we have to retain our counsel in Regina we may as well do so without delay. Farr, through his counsel, responded by letter dated January 21, 1994, the material portions of which read as follows: am advised by Mr. Farr that contrary to your statements, Mr. Farr has never received an executed copy of the agreement, and, in fact, advised us that the only executed agreement that he has seen is the one that you were kind enough to provide to our office. On what evidence are you relying to claim that Mr. Farr received an executed copy of the agreement. Furthermore, there is no indication as to when this contract was signed by you, and, in fact, may very well have been executed following receipt of my correspondence of January 5, 1994. Furthermore, you purport to be signing the contract on behalf of S.S. Johnson Seeds Ltd., and yet, no corporate seal has been affixed to the agreement. Given the information provided to me by Mr. Farr, it is obvious Mr. Farr is not now seeking to break his contract but rather, has revoked his offer to sell the Canary Seed to you. Under the circumstances, Mr. Farr will not be disposing of his Canary Seed through S.S. Johnson Seeds Ltd. Govern yourself accordingly. There were no further communications between Farr and Calcutt (nor anyone else from Johnson Seeds) until March 31, 1994, when Calcutt telephoned Farr to exercise the call provision in the contract. When Calcutt telephoned Farr to ask if he fulfilled the contract, Farr said he had not as he thought there was clause saying he would be paid by January 2, 1994. Calcutt says this is the first time he heard of this. Calcutt exercised the call on this date because he said he still believed Johnson Seeds had contract with Farr. Calcutt says this is when he first heard from Farr that he had sold the canary seed elsewhere. Calcutt advised that canary seed prices escalated dramatically starting in the fall of 1993 and continuing in 1994 and the highest recorded price for canary seed during that time was 42� per pound. Calcutt explains the dramatic increase occurred for three reasons, namely, there was not as much carry-over from the previous year as was expected, the number of acres seeded to canary seed was not that large and there were no bumper crops anywhere in the world where canary seed is grown. As frequently occurs, there is too much that is left unsaid and undone between the parties until there is problem in the arrangement. There were no on-going conversations between the parties and follow up letters to confirm each person's understanding of the arrangement. Nor did anyone bother about compliance with the strict terms of the written contract. For instance, there was term of this contract that harvest report is to be completed by the producer within two weeks of harvest and forwarded with sample to the contractor. What really matters to each party is that the primary terms are honoured, i.e. sell an amount of product at defined price at the correct time. Each person now puts their own slant on the course of dealings as they saw it. find that all discussions prior to May 1993 were pre-contractual negotiations. Farr knew that he wanted 10� per pound and that he wanted to be paid no later than January 2, 1994. Johnson Seeds knew that it was prepared to pay 10� only if delivery occurred after January 1, 1994. Johnson Seeds promised not to take delivery until it could pay 10� per pound. The formal written contract did not expressly set forth these conditions. The formal written contract wassigned by both parties in May, 1993, and both parties knew atthe time they executed the contract that these terms wereabsent. Farr and Johnson Seeds both considered that they hada binding and legally enforceable contract in May and inNovember, 1993. Johnson Seeds retained fully executed copy of the contract on their file in Arborg, Manitoba. Johnson Seeds believes that fully executed copy of the contract was mailed to Farr in the ordinary course of its business. Farr never received fully executed copy of the contract. When Johnson Seeds did not contact Farr in December to arrange to take delivery of the canary seed and when Farr could not get any answer to his telephone calls to the Johnson Seeds office in late December 1993 and early January 1994, he looked at the copy of the contract in his file and he saw that it might be possible to argue that the contract with Johnson Seeds was not valid. When Farr telephoned and found out that he could sell the canary seed for more than double the contract price he realized that he could receive in excess of $90,000.00 which would help his immediate cash-flow problem. Given the cash crunch he was feeling (especially since his sons had gone off skiing and left Farr to worry about the line-of-credit problem), Farr took calculated risk and sold the canary seed. If Farr was wrong and if he did have valid contract with Johnson Seeds then he may have thought that he might have to pay Johnson Seeds 10� per pound for the canary seed he produced. In any event, that would have been at some time in the future and the cash flow problem was immediate. There is no doubt that if Johnson Seeds had delivered cheque to Farr on January 2, 1994, for $42,375.04 (even without taking delivery of the canary seed), there would have been no concern about whether fully executed copy of the contract had been delivered to Farr by mail or otherwise. Johnson Seeds knew in early January 1994 that their contract with Farr was in trouble. They knew that they would not be taking delivery of Farr's canary seed. They did not testify that on receipt of Exhibit D-1 (the second letter from Farr's counsel) that they went into the market place to purchase the canary seed they needed to cover the sales contracts they had to match the Farr contract canary seed production. However, cannot imagine that Johnson Seeds would naively sit around and wait until March 31, 1994, to call the Farr contract and hope that canary seed that he could not deliver would suddenly become available to it. By March 1994 the price of canary seed had escalated to 38.4� per pound. Since the fall of 1993 the price of canary seed had been rising steadily. In my view, Johnson Seeds waited until the last possible day under the written contract terms to telephone and "call" the Farr contract in an effort to position itself to claim increased damages in any lawsuit against Farr for breach of contract. There was concluded contract between Farr and Johnson Seeds. The issue is whether communication by deliveryof the fully executed contract was necessary to complete thecontract so that it could be legally binding and enforceable. In the instant case, the parties communicated inperson, by telephone, by fax and by mail. While it may havebeen in the reasonable contemplation of Farr that he wouldreceive back a fully executed copy of the contract, there isno doubt that in the telephone conversations he had withCalcutt in November and December, 1993, he verbally confirmedthat in his view a contract did exist. This as well was confirmed by Calcutt. What is confusing about these telephone conversations is that Calcutt's records of these telephone calls all refer to discussions about overage on the contract when in fact, the production was less that contracted for. Consequently, the telephone records only suggest that Calcutt and Farr were talking about completely different matters in each of those conversations. This certainly casts some doubt on Calcutt's testimony about these discussions because his notes make no sense in relation to the indisputable facts. Therefore, would accept Farr's evidence that he verbally reaffirmed to Calcutt that it was very important that payment be received in early January 1994. However, this was not written into the contract and Farr was not sufficiently careful to ensure that this term was there in print at the time he executed the contract. Farr cannot now insist that this was an essential and fundamental term of the contract which would entitle him to rescind the contract. am aware that this was Farr's first experience in negotiating these forward sale contracts but he must be more careful before he signs any contract in writing which does not express the essential and important terms that he believes are the essence of the contract. If this term was so important, then it was incumbent on him to insist that it be expressly stated in the contract before he executes the same. have read the decision in Balfour Grain Ltd. v. Goertz (1989), 1989 CanLII 4629 (SK QB), 78 Sask. R. 283 (Sask. Q.B.) wherein Lawton J. held that it was essential to the contract that there would be delivery of the fully executed contract to the defendant. This was factual determination. In the instant case, delivery of the fully executed contract to Farr was not an express term of the contract. In addition to the fax, Farr had used the mail to communicate the offer to Johnson Seeds and it should therefore have been in the reasonable contemplation of Farr that he would received the fully executed copy back in the mail from Johnson Seeds. There is no reason to disbelieve Calcutt that he used the mail in the ordinary course to forward the fully executed copy of the contract to Farr. The post office was legitimate agent of Johnson Seeds for the purpose of communicating the acceptance of the offer and to this extent the postal acceptance rule is satisfied. Further, Farr had verbally confirmed on at leasttwo occasions that he did have a contract with Johnson Seedsand at all times Calcutt confirmed that such a contract didexist. The only issue about which they disagree is whether payment on or before January 2, 1994, was an essential term of the contract. For all these reason, I find that there was a validcontract between Johnson Seeds and Farr. The parties agreed that if found valid contract that the measure of damages is $50,850.05 if the appropriate time for assessing damages is January, 1994. If damages should be assessed at March 1994 the parties agreed that the quantum of damages was $120,345.11. I find that Johnson Seeds knew in January 1994 thatFarr was in breach of the contract and this is when damagesshould be assessed. Accordingly, Johnson Seeds shall havejudgment against Farr for $50,850.05 and pre-judgment interestcalculated in accordance with The Pre-Judgment Interest Act,S.S. 1984-85-86, c. P-22.2 together with costs of the action.

The plaintiff, a specialty seed marketing company, claimed damages from the defendant for an alleged breach of contract. Johnson Seeds entered contracts with growers prior to the seeding and harvesting to secure product for resale. After extended negotiations the defendant eventually signed and mailed the standard form contract but never received an executed copy. The price of the canary seed escalated substantially during 1993. The defendant thought that as he did not have a copy of the contract signed by the plaintiff it was not a valid contract and sold the seed to a third party for more than double the contract price. HELD: Johnson Seeds was awarded judgment for $50,850.05 and pre-judgment interest together with costs of the action. 1)There was a valid contract between the parties. Damages were assessed as of January 1994 when Johnson Seeds knew that the defendant was in breach of the contract. 2)The issue was whether communication by delivery of the fully executed contract was necessary to complete the contract. The parties communicated by fax, mail and telephone. There was no doubt that the defendant verbally confirmed that a contract did exist. Discussions prior to May 1993 were pre-contractual negotiations. 3)Johnson Seed knew that it was prepared to pay 10 cents only if delivery occurred after January 1/94. The formal contract did not expressly set forth these conditions. Both parties knew these terms were absent when they executed the contract but both considered that they had a legally binding contract in 1993. 4)Farr took a calculated risk and sold the seed which alleviated his immediate cash-flow problem. Johnson Seeds waited until the last possible day under the written contract terms to call the contract in an effort to position itself to claim increased damages for breach of contract.

b_1997canlii11375.txt

J. 2002 SKQB 80 Q.B.G. A.D. 2002 No. 331 J.C. S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: LANGHAM CREDIT UNION LIMITED and KIMBERLY CLAYTON RESPONDENT B.D. Barilla for the applicant C.M. Richmond for the respondent JUDGMENT KYLE J. March 5, 2002 [1] On September 6, 2000, the applicant Credit Union loaned Keldon McMillan the sum of $37,700.00 upon security of (inter alia) 1999 Chevrolet Blazer. Mr. McMillan was the owner of the Blazer under vehicle registration certificate at the time of the loan transaction. security agreement was registered at the Personal Property Registry on September 11, 2000. It lapsed year later and was re-registered November 14, 2001. Keldon McMillan died in June of 2001, payments on his loan fell into arrears and demand was made for possession of the Blazer. [2] Kimberly Clayton, Mr. McMillan's wife, had apparently been the person who used the Blazer and who had made payments on it under the original purchase agreement. She was shown as co-buyer on that purchase agreement but she was never the registered owner of the vehicle until she acquired it from her husband's estate. [3] Prior to the expiry of the registration the Credit Union had made Ms. Clayton aware of their claim and of their intent to realize upon their security. The vehicle was not sold or charged in favour of third party during the period of September 11, 2001, to November 14, 2001, when the security interest was unperfected. [4] Ms. Clayton, who needs the vehicle as transportation for herself and her children, seeks to defeat the security interest upon the ground that she was at all times the real owner of the vehicle, had made the payments and was always in possession of the vehicle. It appears that her husband's claim was based on his being one of the named purchasers in the original agreement and being the registered owner of the vehicle. All other indicia of ownership were in her favour. [5] The issue presented to this Court by these two motions is:➢ Does the registered owner of a vehicle have the power to grant a security interest enforceable in priority to the interest of a person whose claim, though substantial, is not registered or otherwise of record in any place where the lender has or should have notice of it? [6] take judicial notice of the fact that there is no title registry of vehicles in Saskatchewan other than that presently maintained by Saskatchewan Government Insurance (SGI). Counsel for the applicant asserts that this registration is only for insurance purposes but such is not the historical fact. Long before compulsory auto insurance, licences were issued to vehicle owners under vehicle registry which in addition to identifying the owners allowed police to identify vehicle and its owner for enforcement purposes. There were revenue aspects to this as well. Under The Vehicle Administration Act, S.S. 1986, c. V-2.1 of the licencing function has been assigned to SGI which issues certificates of registration and licence plates upon the application of "the owner of vehicle or the agent of an owner". Other provisions of that Act and of The Highway Traffic Act, 1996, S.S. 1996, c. H-3.2 are clear in that they regard the person named in registration certificate to be the owner of the vehicle. Considerations of insurance are dealt with under The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 but they are far from being the only reasons for registration of vehicle by the owner. [7] For all practical purposes, the owner of motor vehicle in Saskatchewan is the person who is named in the current registration certificate pertaining to that vehicle. Lenders, police officers and the world at large rely upon that certificate. If such certificate were obtained by fraud or in error it could be corrected but persons relying upon the certificate without actual notice of any title defect are protected, subject, of course, to prior registrations under The Personal Property Security Act, 1993, S.S. 1993, c. P-6.2. [8] Most chattel property is not the subject of any form of registration and in such cases possession is the principal and primary determinant of ownership. Motor vehicles are unique in that their registration creates presumption of ownership and follows declaration of ownership by the registry. Since vehicles, next to real property, constitute the most valuable and probably the most frequently financed property in our society, reliance upon the registration system is an important facet of our commerce. To take away the reliance upon vehicle registration certificates as evidence of ownership would create chaos in the marketplace. [9] The Personal Property Security Act does not establish title as determining fact in questions of priority of conflicting claims. It has been held to be irrelevant (see National Trailer Convoy of Canada Ltd. v. Bank of Montreal (1980), P.P.S.A.C. 87). This does not, however, affect the right of lender to rely upon registration certificate as evidence of an interest in vehicle and to enforce its security interest without regard to unregistered claims. If this seems unfair it may be that as stated in National Trailer, supra, "the legislature was prepared to accept the possibility of some unfairness as price for certainty". [10] In summary then hold that ownership does not depend upon registration. There are many unregistered vehicles. However, once vehicle is registered following declaration of ownership, presumption arises in favour of the holder of the registration certificate and as matter of commercial efficacy lenders, the police, insurers, repairmen, etc. are justified in relying upon the certificate as proof of ownership. [11] The applicant has also argued that at time when the registration of the Credit Union had lapsed, she transferred ownership from her husband's name to her name. Such a transfer would only serve the purpose of defeating the Credit Union's claim if it were undertaken for value and without notice, which was not the case here. [12] I therefore hold that the claim of the Credit Union is enforceable as against the conflicting claim of Ms. Clayton. In the special circumstances of this matter decline to order costs of either motion.

The Credit Union loaned $37,700 upon security, inter alia, of a 1999 Chevrolet Blazer owned by McMillan. A security agreement was registered at the Personal Property Security Registry in September 2000 and re-registered in November 2001. After McMillan died in June 2001, payments fell into arrears and a demand was made for possession of the Blazer. His widow, the respondent, was shown as co-buyer on the purchase agreement but was never the registered owner until she acquired it from her husband's estate. She sought to defeat the security interest on the grounds she was the real owner at all times, made the payments and was always in possession. At issue was whether the registered owner of a vehicle has the power to grant a security interest enforceable in priority to the interest of a person whose claim, though substantial, is not registered or otherwise of record in any place where the lender has or should have notice of it. HELD: The claim of the Credit Union was enforceable. Judicial notice was taken of the fact there is no title registry in Saskatchewan other than that maintained by Saskatchewan Government Insurance. The licensing function was assigned to SGI under the Vehicle Administration Act. That Act and the Highway Traffic Act are clear the person named in a registration certificate is regarded as the owner of the vehicle. Motor vehicles are unique in that their registration creates a presumption of ownership and follows a declaration of ownership by the registry. Reliance upon the registration system is an important facet of our commerce and would create chaos if reliance is taken away. Ownership does not depend upon registration. However, once a vehicle is registered following a declaration of ownership, a presumption arises in favour of the holder of the registration certificate and as a matter of commercial efficacy lenders, the police, insurers, repairmen, etc. are justified in relying upon the certificate as proof of ownership. A transfer of ownership would defeat the Credit Union's claim only if it were undertaken for value and with notice. No costs were awarded on either motion.

d_2002skqb80.txt

J. Q.B. A.D. 1992 No. 04166 J.C.P.A. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: CHERYL MAE KATCHUR (previously Cheryl Mae Oystryk) APPLICANT (RESPONDENT) and LESLIE MICHAEL OYSTRYK RESPONDENT (PETITIONER) G. Chovin for the applicant A. Logue for the respondent FIAT NOBLE J. May 28, 1998 [1] The parties were married May 5, 1973 and separated January 4, 1992. The husband petitioned for divorce and other corollary relief on June 19, 1992. The wife (applicant herein) counter-petitioned on March 22, 1993 and included in her claim "lump sum and periodic spousal support". [2] The matter proceeded from there and it is apparent that the parties negotiated settlement of all of the outstanding issues in the dispute including divorce, custody of the children, division of matrimonial property, and spousal support payable by the husband to the applicant. AnInterspousal Contract dated July 21, 1993 was entered into bythe parties which includes the following provisions relevantto this dispute: 1. In the preamble the agreement reads: D. The Parties to this agreement wish to divide their marital property and settle the outstanding issues between them. 2. Paragraph 12 which reads: The Husband, Leslie Oystryk, shall pay tothe Wife, Cheryl Oystryk, periodic spousalsupport in the sum of $350.00 per monthcommencing on the 1st day of January, 1993and continuing on the 1st day of each andevery month thereafter until the 31st dayof December, 1995 inclusive. In the event of the death of the Leslie Oystryk prior to conclusion of his obligation to pay spousal support herein, then the Parties hereby agree that the said obligation shall be chargeable to and payable by the estate of Leslie Oystryk. [3] The parties both acknowledged that they were aware of the nature and effect of the Interspousal Contract and each had independent legal advice before the agreement was signed. [4] Subsequently, the clause with respect to spousal support above noted was incorporated, apparently by consent of the parties, into the judgment of the Court which was dated November 26, 1993. [5] It appears from the material that the husband paid the applicant the periodical spousal support of $350.00 month up to and including the 31st day of December, 1995 in accordance with the terms of the order. [6] On March 13, 1998, the applicant launched thisapplication to vary the order for spousal maintenance ofNovember 26, 1993 on the grounds that there has been a changein circumstances in that the applicant's annual income iscurrently less than half of what it was at the time the orderwas made and that the applicant's economic hardship can betraced to the breakdown of her marriage to the respondent dueprimarily to the fact that his job required him to move fromplace to place during the years of the marriage and thisprevented her from entering the work place or furthering hereducation to upgrade her skills and confined her to the roleof homemaker and/or housewife during that period of time. In addition, although the applicant following the separation did obtain some training as special care aide she alleges that she is unable to maintain her income at the level it was when the separation took place. By her own affidavit, she swears that her income from 1994 through 1998 (up to March) has been as follows: 1994 $20,662.00 1995 $26,847.37 1996 $11,329.04 1997 8,425.59 1998 (to the month of March) $223.10 [7] The applicant further contends that she has done everything possible to become self-sufficient and that her inability to successfully increase her income has caused her to become overstressed and ill. She relates this back to the circumstances of her marriage before the separation saying that because of the nature of the marriage she was in effect unable to acquire the skills that she would need once the marriage broke up. [8] It appears that the two children of the marriage are now of an age where they are not factor that the Court need take into account with respect to the applicant's motion. [9] The application is brought pursuant to section 17(4) and s. 17(7)(c)(d). Essentially these sections authorize the Court to vary an order of spousal support where there has been change in the condition, means, needs or other circumstances of one of the spouses. Subsection suggests that the Court should take into account any economic disadvantages to one of the spouses arising from the marriage or its breakdown, that it should relieve any economic hardship of spouse arising from the breakdown of the marriage and so far as is practicable promote the economic self-sufficiency of each spouse within reasonable period of time. [10] Against that background the applicant seeks an order not only restoring the spousal support previously ordered but increasing it over and above the $350.00 per month originally prescribed and making such support payable until further order of the court. [11] Counsel for the respondent husband takes the position that the applicant has failed to prove that she is no longer self-sufficient particularly since there is no independent evidence (such as medical evidence) which would suggest that she cannot pursue employment or career that would earn her living due to illness whether it be physical or stress related. In addition, counsel points out that in December of 1995, the applicant brought similar variation application (which is confirmed by reading of the file) even though she earned in excess of $25,000.00 in 1995. That application does not appear to have proceeded but the arguments in the material filed are much the same as those that are before the Court on this occasion and include the contention of the applicant that she found it necessary to work long hours and adopt heavy work schedule from which she became stressed and ill, suffered from exhaustion and anxiety. The file indicates that that application was struck from the list in February of 1996. The applicant has waited two years before pursuing the variation of the spousal maintenance order [12] was referred to the case of Gessner v. Gessner (1996), 1996 CanLII 6848 (SK QB), 150 Sask. R. 298 (Sask. Q.B.) decision of my colleague Gunn J., where the minutes of settlement relating to the divorce proceedings contained provision that the husband would pay to the wife $550.00 per month spousal maintenance on an open-ended basis. The first application to vary made by the husband came before Malone J. who concluded that the agreement was meant to be open ended and he refused to vary it. Subsequent applications were made to Grotsky J. and McLellan J. but the result was the same. In the application to McLellan J. he relied on the decision in Masters v. Masters (1990), 1990 CanLII 7490 (SK QB), 82 Sask. R. 190 (Sask. Q.B.) (also decision of Malone J.) in which the order of the Court called upon the petitioner husband to pay to the respondent the sum of $700.00 per month until the respondent should remarry or die whichever shall first occur or until further order. This order reflected the wording of separation agreement the parties had entered into before the matter got before the Court. Malone J. held that when the husband applied to vary the order that the application must be dismissed because as he said, quoting from the decision in Gessner, supra, at page 302: "Furthermore, the agreement was worded in such manner that it is obvious it was intended by the parties to be final settlement of their obligations to each other. The decision of Malone J. in Masters went all the way to the Supreme Court of Canada where it was upheld. [13] It is apparent from Gunn J.'s review of the Masters decision that Malone J. was influenced by the so called trilogy of cases in the Supreme Court of Canada (Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] S.C.R. 801; 1987 CanLII 57 (SCC), [1987] W.W.R. 481; 1987 CanLII 57 (SCC), 76 N.R. 81; 1987 CanLII 57 (SCC), R.F.L. (3d) 225; 1987 CanLII 57 (SCC), 38 D.L.R. (4th) 641; Richardson v. Richardson, 1987 CanLII 58 (SCC), [1987] S.C.R. 857; 1987 CanLII 58 (SCC), 77 N.R. 1; 1987 CanLII 58 (SCC), 22 O.A.C. 1; R.F.L. (3d) 304; 1987 CanLII 58 (SCC), 38 D.L.R. (4th) 699; Caron v. Caron, [1987] S.C.R. 892; [1987] W.W.R. 552; 1987 CanLII 59 (SCC), 75 N.R. 36; 1987 CanLII 59 (SCC), Y.R. 246; R.F.L. (3d) 274; 1987 CanLII 59 (SCC), 38 D.L.R. (4th) 735) and in particular the comments of the Court in Pelech: "It seems to me that where the parties have negotiated their own agreement, freely and on the advice of independent counsel, as to how their financial affairs should be settled on the breakdown of their marriage, and the agreement is not unconscionable in the substantive law sense, it should be respected. People should be encouraged to take responsibility for their own lives and their own decisions. This should be the overriding policy consideration." [14] In light of the position that Malone J. took in the Masters case Gunn J. found that the agreement in the Gessner case was intended to be final and since there was no unforseen or radical change in the circumstances that had been demonstrated the application was dismissed. [15] While this application is by the wife to restore previously expired spousal maintenance order and differs from most of the cases where variation is usually applied for by the husband as opposed to the female spouse it seems to me the principles are just as applicable albeit in the reverse situation. While it is true the income of the applicant herehas dropped I agree with the respondent's counsel that she hasnot established that she cannot be self-sufficient. During at least some of the years since the separation she has been very self-sufficient and if she has fallen upon hard days of late, while it is regrettable, the terms of the agreement which limited the payment of spousal support to the 31st of December, 1995 appear applicable. There is no suggestion thatthe agreement was unfairly negotiated or that she wassubjected to undue influence or pressure in any way beforesigning the agreement and was, in fact, advised by counselbefore doing so. I am left with the conclusion that theagreement with respect to spousal maintenance was intended tobe final. In light of those conclusions, I have noalternative but to dismiss the application. [16] The respondent is seeking costs of the application but in my view while the applicant has failed to make out her case this is not an instance where costs should be granted and decline to do so. Each party shall pay their own costs.

FIAT. The parties were married in 1973 and separated in 1992. The husband petitioned for divorce and corollary relief in 1992. The wife counter-petitioned in 1993 claiming a 'lump sum and periodic spousal support'. An interspousal contract entered into 1993 provided for periodic monthly spousal support of $350. Both acknowledged that they were aware of the nature and effect of the agreement and each had independent legal advice before signing. The husband paid periodic spousal support until December 1995. The applicant sought to vary the 1993 order on the grounds there had been a change in circumstances in that her annual income was currently less than half of what it had been at the time the order was made and her economic hardship could be traced to the breakdown of her marriage primarily because his job had required them to move from place to place during the marriage. HELD: The application was dismissed. 1)The agreement was intended to be final. While the applicant's income had dropped she had not established that she could not be self-sufficient. The terms of the agreement which limited the payment of spousal support to December 1995 appeared to be applicable. The applicant had previously brought a similar variation application even though she earned in excess of $25,000 in 1995. 2)There was no suggestion that the agreement was unfairly negotiated or that she was subjected to undue influence or pressure in any way prior to signing and she had been advised by counsel. 3)Costs sought by the respondent were refused.

c_1998canlii13623.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 257 Date: 20050602 Docket: Q.B. CRIM 1963 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and MARGARET JEAN FITCH Counsel: Ronald J. Balacko for the Crown Kenneth S. Westlake for the Margaret Jean Fitch FIAT ON APPLICATION FOR DISCLOSURE MacDONALD J. June 2, 2005 [1] Thank you to both counsel for providing their arguments and extensive authorities. [2] The essence of the authorities is that on motions of this kind the Court ought to guard against the pursuit of what have been termed “fishing expeditions”—speculative quests for information without any real expectation about the outcome of the quest or its relevance to the case. [3] Here, however, the defence has already indicated that issues around s. 8 and s. 9 of the Canadian Charter of Rights and Freedoms (the “Charter”) will be raised at trial. [4] Defence now wants further disclosure of information for the purpose of preparing for and pursuing inquiry into the facts that relate to those important issues. [5] To pursue the fishing analogy so often used in the authorities, the purpose of such an inquiry will in part be to determine whether, in comparison with the guarantees given by the Charter, the investigation in this case “cast too wide net”. [6] Accordingly, the Crown shall make timely disclosure of: (a) The number of stops of out-of-province vehicles made by Constable Chornecki in each of the years 2002, 2003 and 2004; (b) The reason for each stop in the first place; (c) How many such stops resulted in search for contraband, including narcotics; (d) How many of those searches were done using the “consent” form used by Constable Chornecki; (e) How many of those searches were conducted using search warrant; (f) Specifics of any other grounds for those searches that were applied and how many times; (g) On how many occasions did the searches result in the finding of contraband, including narcotics; [7] The parties will note that have not ordered that the names of the drivers stopped be disclosed and that have not ordered the actual notes of the officer to be reproduced. The notes of course will presumably supply some details of the required disclosure as ordered above and as usual will need to be made available for the purposes of evidence at trial if required and shown to be relevant to the proceedings as they unfold. J. L. B. MacDonald

FIAT: The defence has indicated that issues around s. 8 and s. 9 of the Charter will be raised at trial. Defence now wants further disclosure of information that relate to those important issues. HELD: Further disclosure is ordered. The names of the drivers stopped will not be disclosed and the actual notes of the officer are not ordered to be produced.

2005skqb257.txt

THE COURT OF APPEAL FOR SASKATCHEWAN PETER PATRICK and YVONNE PATRICK RESPONDENTS (Plaintiffs) and GEORGE HAGBLOM, H.G.L.M. ENTERPRISES LTD. and GEORGE HAGBLOM MASONRY LTD. APPELLANTS (Defendants) CORAM: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Wakeling The Honourable Madam Justice Gerwing COUNSEL: Mr. N. Stooshinoff for the Appellants Mr. G. Richards for the Respondents DISPOSITION: Appeal Heard: June 11, 1996 Appeal Dismissed: June 11, 1996 (orally) Reasons: June 21, 1996 On Appeal From: Q.B. No. 4252/92 Appeal File: 2106 Reasons by: The Honourable Mr. Justice Vancise In concurrence: The Honourable Mr. Justice Wakeling The Honourable Madam Justice Gerwing VANCISE J.A. (Orally) The appellants George Hagblom and George Hagblom Masonry Ltd. apply to adduce fresh evidence and to amend the statement of claim in the within action. The appellants contend that they instructed the solicitor who was acting for them at the time of the trial (and who is not the solicitor on the appeal) to call certain expert evidence dealing with the causation of the fire which destroyed the respondent's residence. The appellant's solicitor called no expert evidence concerning either the proper construction of the chimney, which was alleged to be faultily constructed, or the cause of the fire. The tests for the admission of fresh evidence on appeal are well known and are set out in R. v. Palmer, 1979 CanLII (SCC), [1980] S.C.R. 759; R. v. Stolar, 1988 CanLII 65 (SCC), [1988] S.C.R. 480; R. v. Osiowy and Osiowy (1989) 1989 CanLII 5146 (SK CA), 80 Sask. R. 14 (Sask C.A.). The appellant contends that the expert evidence which he wishes to tender is relevant, credible and if believed could reasonably, when taken with all the other evidence, be expected to have affected the result. He candidly concedes however that, with due diligence it could have been adduced at the trial. It is the appellant's contention that in the circumstances of this case the interests of justice require that the rule of due diligence should not be strictly applied. We are all of the opinion that the evidence was clearly available, clearly contemplated by the parties and for whatever reason not called. We are not persuaded that the application to adduce fresh evidence in this case should be allowed. 2- The application to adduce fresh evidence and to amend the statement of defence is denied. Dealing with the appeal proper, we are allo the opinion it must be denied. The standard of review is that as articulated in Lensen v. Lensen, 1987 CanLII (SCC), [1987] S.C.R. 672. We are not persuaded in the circumstances of this case that the trial judge either misapprehended or failed to take into account evidence which was before him in arriving at his conclusion concerning the causation of the fire. There was evidence which, if accepted, would permit the trial judge to make the findings of fact that he did and to award the damages based on those findings. The appeal is dismissed with costs on double Column V, including costs of the motion to adduce fresh evidence.

The appellants applied to adduce fresh evidence and to amend the statement of claim. The appellant's solicitor at the time of the trial had called no expert evidence concerning either the proper construction of the chimney, which was alleged to be faultily constructed, or the cause of the fire. HELD: The appeal was dismissed with costs on double Column V, including costs of the motion to adduce fresh evidence. 1)The evidence was clearly available, clearly contemplated by the parties and for whatever reason not called. 2)The trial judge neither misapprehended nor failed to take into account evidence which was before him in arriving at his conclusion concerning the causation of the fire. There was evidence to permit the trial judge to make the findings of fact that he did and to award the damages based on those findings.

3_1996canlii5007.txt

nan SUPREME COURT OF NOVA SCOTIA Citation: R. v. Buckley, 2009 NSSC 204 Date: 20090706 Docket: CRAT 298452 Registry: Halifax Between: Jason Brian Buckley v. Her Majesty the Queen Respondent Judge: The Honourable Justice Duncan R. Beveridge. Heard: April 29, 2009, in Antigonish, Nova Scotia Final Written Submissions: May 20, 2009 Written Decision: July 6, 2009 Counsel: Maurice G. Smith, Q.C., for the Appellant Darlene Oko and Meghan E. MacGillivray, for the respondent By the Court: INTRODUCTION [1] The appellant was a student at St. Francis Xavier University in Antigonish, Nova Scotia. He sent an email to his computer science professor with an attachment. Although the professor did not take the content of the attachment as threat, he sent it to university officials as he had been requested to alert them to any odd or unusual behaviour by the appellant. The police were contacted and charge laid was against the appellant of uttering threat to the professor to cause his death, contrary to s.264.1(1)(a) of the Criminal Code. [2] The appellant did not have a lawyer when he stood his trial on May 14, 2008 in Provincial Court. He was found guilty and was sentenced immediately following the conclusion of his trial to an 18 month suspended sentence, and placed on probation with conditions. Counsel was retained and an appeal commenced from conviction and sentence, alleging improper admission of evidence, unfair and prejudicial cross-examination of the appellant and a failure to give due consideration to a conditional discharge. New counsel took over carriage of the appeal. No formal amendment of the grounds of appeal was sought, but the appellant’s brief also argued that the verdict reached was unreasonable. [3] At the hearing of the appeal on April 29, 2009, asked counsel for the respondent, who was not counsel at trial, or even initially on the appeal, if she wished an opportunity to specifically address the appellant’s argument that the verdict was unreasonable. She did. Supplementary submissions were made by both parties. In terms of remedy, the appellant seeks an acquittal, new trial or conditional discharge. [4] By way of overview, this appeal raises issues of the admissibility of evidence, the appropriateness of questions asked of the appellant in cross-examination, and the impact these matters may have had on the integrity and fairness of the trial; the elements of the offence that the Crown needed to prove beyond reasonable doubt, and was there sufficient evidence that would permit reasonable trier of fact, properly instructed and acting reasonably, to be satisfied beyond reasonable doubt on those elements. FACTUAL BACKGROUND [5] The trial did not take long. There were only three witnesses, Professor Martin Van Bommel, Mark MacAulay and the appellant. Much of the evidence was not contested. [6] In the fall of 2007 the appellant was enrolled as student at St.F.X. One of his courses was Computer Science 161, Introduction to Computers, Programming and Problem Solving. Professor Van Bommel was the instructor. Van Bommel testified that up to October 25, 2007, the appellant regularly attended class, occasionally asking questions that were not relevant to the course or topic, but in general seemed to be participating as any regular student. He had no concerns about the appellant, but did notice some strange or unusual behaviour at times in the Math Resource Centre. Van Bommel said the appellant would make unusual comments to the computer itself, and said number of times that he thought people were hacking into his computer, monitoring his keystrokes, and some people were out to get him. [7] On October 25, 2007 Professor Van Bommel received an email from the appellant with an attachment. It was not unusual for him to receive emails from the appellant or other students. Van Bommel described the body of the message to be quite poorly worded, with some strange comments. More troubling was the attachment. He regularly received emails from students with computer programs attached, asking for help with their programs. The attachment from the appellant was text file with lot of extra characters in it. That was not disturbing. The file was created using program that they would not ordinarily use for their programming. The body of the email did reference the fact that the appellant was not sure what format the message would arrive in. The email asked for assistance in de-bugging the program, correct the errors in it and get it running. [8] When Van Bommel deciphered the attachment, there were couple of messages in it that were “disturbing to me as part of computer program. One of the messages included the phrase believe it’s ‘I am going to kill you.’ but not not in the sense that it is directed straight to me, but as part of that program that he was writing.” The other comment in the attachment was “I am so horny”. These two statements, mixed with the rest of the email, he found very disturbing and would not normally be sent by student in any context. [9] Copies of the email and attachment were tendered as Exhibit #1 and #2. The email was sent at 7:52 p.m. on October 24, 2007. It read: have been writing you lot, but to the wrong email -_-. Here is few programs am having trouble with. Even if you don’t get to them before the test, understand. So this first one is well. Now don’t know. will probably send some wordpads, and some cpp.’s. Might not be what originally had in mind, but second times 2nd try. Here you go. Well its no most certainly not what had in mind, but perhaps will come see you in person. If you like the night you may consider spending more time around the office. will see you tommorrow (sic), and might throw some other attachments still. Be careful you don’t get virus. *Look out for the LIch King:)* [10] With respect to the attachment, (Exhibit #2) the evidence was more technical. Professor Van Bommel testified there was program embedded in the attachment, but it had lot of other characters with it. Exhibit was not an exact copy of what he had received. Van Bommel explained that it was slightly modified, as he added some white character space, did some indentation and removed some carriage returns, but none of the text had been modified. [11] It appears not to have been contested by anyone that the attachment was some sort of computer program. In cross-examination Professor Van Bommel clarified that when he removed the extra control characters, it did appear to be computer program, but that he did not run it as he had not de-bugged it. The trial judge sought further clarification from Van Bommel. The witness testified that he would take the attachment and enter the Borland Compiler, which would convert it to running program. The attachment looked to be designed as real program, but he could not say exactly what it would do as there was not enough of it to actually do anything. But the attachment would accept input from the user of the program and would generate text messages. The words in issue were part of the program. [12] Following receipt of the email of October 24, 2007, Van Bommel emailed the appellant and told him the message was not appropriate. He also met him in the Math Resource Centre on October 25, 2007. The witness was given permission to refer to notes he had made of this meeting. After referring to those notes, Van Bommel testified that he had informed the appellant the attachment was not appropriate and he should not be forwarding that type of attachment. The appellant, according to Van Bommel, responded that “he thought that someone was monitoring what he was typing, so he typed those messages in that file to get reaction from whoever was monitoring his typing”. The Crown posed leading question to the witness. All right. Did he say, To get reaction from whoever was monitoring him.” or did he just say, “To get reaction.” –? A. Ah I’m not positive on that one Q. All right. A. one way or the other. All right. But in any event, he he used the words, “– to get reaction –“, [13] There was no cross-examination on this point by the appellant. The trial judge sought to clarify this evidence. He asked: Q. Okay. Okay. Now just to again clarify. He said he “– put these in for what purpose A. The comment he made was he, “– thought someone was monitoring his typing and he wanted to get reaction.” A. Whoever was monitoring his typing. [14] The only other Crown witness was Mark MacAulay. The appellant objected to him being called as witness as he was “not related” to threat incident. Without calling on the Crown to respond, the trial judge ruled: “Well, we’ll hear what his evidence is, okay and then you can ask him questions.” [15] MacAulay testified that he was the Director of Health and Counselling at St.F.X. He first met the appellant when he came to the counselling office requesting an appointment. MacAulay elaborated that he ended up meeting with the appellant on October 4, 2007 and as result he “had lot of concerns at that point in time”. He described the appellant as incoherent and disjointed, talking about death. He convinced the appellant to go to the hospital. He says physician saw the appellant and that the physician wanted to admit the appellant to hospital. The appellant left the hospital and he “understood the RCMP were called.” [16] Between October and October 25, 2007 MacAulay said he saw the appellant walk into the doctor’s office in the Health and Counselling Centre. The Crown asked MacAulay if the appellant had received any treatment other than through the Health Centre. MacAulay said he had. The appellant again objected, that his mental health was irrelevant to the case. The Crown decided not to pursue the question. The Crown asked MacAulay if he had ever spoken with the appellant about the email of October 24, 2007. He testified: MS. OKO: Did you ever speak with Mr. Buckley directly about what had been sent to Mr. Van Bommel? Yes, did. Like over the phone, we had talked about it. It was after the fact, but in between it was not directly. What had happened at that point was became aware of the e-mail. A. consulted with physician, Doctor Steeves, who is one of the person’s Doctor Brian Steeves he’s on call he does on-call psychiatry and he consulted with Doctor Rahman and he called and Doctor Rahman had met with Jason earlier and it was at that point that Doctor Rahman said there’s just too many unknowns here and he should be remanded for 30-days so then we called the RCMP. All right. But did you talk with Mr. Buckley about the e-mail sent to Mr. Van Bommel? A. Not directly. [17] As it turned out, MacAulay did not have any conversation with the appellant until after he got out of the hospital. He spoke with the appellant on the phone, but could not recall any of the details without his notes, and he did not have his notes with him. Nothing further was elicited from Mr. MacAulay. [18] The Crown closed its case. The trial judge then called on the Crown to outline what it says is its case before asking the appellant his election on calling evidence. The appellant did elect to call evidence. The first witness he wanted to call was Professor Van Bommel. It was obvious this was highly unusual as he could have elicited any evidence from Van Bommel he believed to be relevant to his defence during cross-examination. The only evidence elicited from Van Bommel by the appellant was that he was friendly man and it would be out of the norm for anyone to want to harm him. [19] The appellant testified. His evidence in direct was short and to the point: MR. BUCKLEY: Yes. I’d like to start by saying never knowingly threatened Martin Von (sic) Bommel or any person for that matter now that I’m here. I’ve never knowingly threatened anyone or or– or– umm–I’m not– I’ve never knowingly made threats. [20] The Crown cross-examined the appellant. The evidence the appellant gave was at times unusual. He was asked if he took instruction from Professor Van Bommel. His answer was he listened as he professed. He would be in the same local area throughout the week at periodic times and he would be in range where he could hear him speak. When it came to the email Exhibit #1) he was asked if he sent it. His answer was he did pretty much write this all out, but like it says “this is the second try”. The trial judge interrupted the appellant and demanded to know if he understood the question. The judge said that the Crown wanted to know if he sent the email to Van Bommel. He said he did not. The Crown then asked him you deny sending this?” His answer was “No.” He referred to the message as having come from an electronic machine. His evidence was certainly evasive. [21] With respect to the real nub of the case, the attachment containing what the Crown alleged was the threat to cause death to Professor Martin Van Bommel, he acknowledged being the author of the attachment: A. [Witness given Exhibit #2] Yeah, this is all mine. This like well, not not really, but uh the general idea uh where you would enter numbers –uh and try to find your way through maze [22] With respect to the evidence of the appellant that he never knowingly threatened anyone, the Crown asked him series of questions suggesting that he had been previously suspended from the university for sending an email to the President threatening to kill him. The appellant denied having done so. [23] The Crown called no rebuttal evidence. The Crown argued to the trial judge that the appellant’s evidence should not be accepted. It was plain that the appellant was the author of the email and the attachment. This she said, was confirmed by what she suggested was the result of the conversation between Van Bommel and the appellant on October 25, 2007....that the appellant did not deny sending it, but sent it to get reaction. [24] Relying on R. v. Clemente, the Crown submitted that “HAHA good job but am going to kill you.” viewed objectively, looking at the entirety of the circumstances, was threat. In addition, the person who had the best vantage point was Professor Van Bommel himself. He said he was disturbed by the content of the attachment, so disturbed in fact that he sent it to Mr. MacAulay. [25] In terms of the appellant’s intention, the Crown submitted the appellant intended Van Bommel to open the attachment and read it, and that the words were written as threat, they were meant to intimidate or be taken seriously, and this was confirmed by the appellant in his conversation with Professor Van Bommel. [26] The appellant argued that he never threatened anyone and that Professor Van Bommel was not threatened by it, but maybe Mark MacAulay took it as threat. [27] The trial judge immediately rendered an oral decision. He expressed no difficulty finding it was the appellant that sent Exhibit #1 to Van Bommel and that Exhibit #2 was attached to it. The phrase “HAHA good job, but am going to kill you” he considered to be prima facie threat. The only issue the trial judge identified was what was the appellant’s intention, that is, was the threat intended to be taken seriously in line with the authorities relied upon by the Crown. He re-stated the issue as: The issue really here, is what was his intention when he forwarded this message, in particular the one that described and what inferences can be drawn from what he said to Professor Van Bommel the next day? [28] The trial judge referred to the conversation on October 25, 2007 as follows: During the conversation at the Math Lab, Mister or Professor Van Bommel confronted Mr. Buckley about the e-mail. He testified that earlier he had been quite disturbed when he read that and that he had sent it on to other personnel, Mr. MacAulay, in particular, at the university, because of the disturbing nature of the of the contents of the e-mail. He confronted Mr. Buckley about it and Mr. Buckley confirmed that he had in fact sent the e-mail and that he had sent it for specific purpose. He had been concerned that people were monitoring his e-mail and he sent and he included these words, together with other phrases to guess quote the testimony of Professor Van Bommel. to get reaction.” [29] This led the learned trial judge to conclude: Now it’s quite clear that Mr. Buckley intended to put these words into the e-mail. He intended to send it to Professor Van Bommel and he intended Professor Ban Bommel to open the e-mail. The only reasonable inference that one can draw is that he intended Professor Van Bommel to read the contents of the e-mail, including the phrase that just described. It was his intention to get reaction. The only reasonable inference that one can draw or can conclude from all this is that he wanted to get reaction from Professor Van Bommel and, in particular, as result of the words that just described. They were not written in jest. In the context of the of all of the circumstances, they were designed to get reaction. In other words, they were designed to be taken seriously by the reader of the e-mail, in this case, Professor Van Bommel, who was the person was the recipient of the e-mail. They were designed to intimidate him, in the true sense of the word. They were menacing and they were designed to disturb him and upset him, i.e. “Get reaction.”, as he indicated to Mister or to Professor Van Bommel when he met him at the Math Lab. [30] The trial judge rejected the appellant’s testimony as not being credible, as not being in accord with the preponderance of probabilities, given what he said at the Math Lab to Professor Van Bommel. He concluded at p.108: Looking at all of the evidence on the whole, am satisfied beyond reasonable doubt that Mr. Buckley composed the e-mail, that he sent the e-mail, that he included the words that just referred to, “Ha, ha. Good job, but I’m going to kill you.” He intended for Professor Van Bommel to read this. He intended for him to take it seriously in the sense that he wanted to intimidate or menace Professor Van Bommel, or for that matter, any other reader of this and am satisfied of all of that beyond reasonable doubt and that constitutes threat and consequently he found guilty [sic] under s.264.1(a) of the Criminal Code. [31] With respect to the appeal from conviction, the appellant raises the following issues: Was the evidence of Mark MacAulay admissible and did its admission impact on the fairness of the trial; Was the cross-examination of the appellant unfairly prejudicial; Was the verdict unreasonable; ANALYSIS The evidence of Mark MacAulay [32] The Crown is entitled to call evidence that is relevant to the matters in issue. There were no formal or informal admissions by the defence. The Crown then was required to prove beyond reasonable doubt all the elements of the offence. The elements are the actus reus and mens rea of the offence which are determined by considering the wording of the charge set out in the indictment and how it is defined by law. The charge alleged that Jason Brian Buckley on or about the 25th day of October, 2007, at or near Antigonish, Nova Scotia, did by electronic email transmission knowingly utter threat to Martin VanBommel to cause death to Martin VanBommel, contrary Section 264.1)1)(a) of the Criminal Code.” [33] Section 264.1 of the Criminal Code provides: 264.1 (1) Every one commits an offence who, in any manner, knowingly utters, conveys or causes any person to receive threat (a) to cause death or bodily harm to any person; (b) to burn, destroy or damage real or personal property; or (c) to kill, poison or injure an animal or bird that is the property of any person. [34] In R. v. Clemente, 1994 CanLII 49 (SCC), [1994] S.C.R. 758, the mens rea of the offence was described by Cory J., writing on behalf of the full court, as: [6] At issue is the mens rea that is required by s. 264.1(1)(a). The appellant alleges that it must be established that the words were uttered with the intent to intimidate or instill fear. The respondent contends that it is sufficient if it is shown that the threat was uttered with the intent that it be taken seriously. In the Court of Appeal both the majority and minority proceeded on the basis that the words must be uttered with the intent to intimidate or instill fear. The majority concluded that the trial judge had found the requisite intent had been established. The minority thought his findings did not support the requisite mens rea. [7] The requisite intent can be framed in either manner. The aim of the section is to prevent "threats". In The Shorter Oxford English Dictionary (3rd ed. 1987), "threat" is defined in this way: denunciation to person of ill to befall him; esp. declaration of hostile determination or of loss, pain, punishment or damage to be inflicted in retribution for or conditionally upon some course; menace. Under the section the threat must be of death or serious bodily harm. It is impossible to think that anyone threatening death or serious bodily harm in manner that was meant to be taken seriously would not intend to intimidate or cause fear. That is to say, serious threat to kill or cause serious bodily harm must have been uttered with the intent to intimidate or instill fear. Conversely, threat uttered with the intent to intimidate or cause fear must have been uttered with the intent that it be taken seriously. Both of these formulations of the mens rea constitute an intention to threaten and comply with the aim of the section. [8] Section 264.1(1)(a) is directed at words which cause fear or intimidation. Its purpose is to protect the exercise of freedom of choice by preventing intimidation. The section makes it crime to issue threats without any further action being taken beyond the threat itself. Thus, it is the meaning conveyed by the words that is important. Yet it cannot be that words spoken in jest were meant to be caught by the section. [35] Cory J. noted that the question whether the accused had the intent to intimidate, or that the words were meant to be taken seriously, in the absence of an explanation by the accused, will usually be determined in an objective manner, by the words used, the context in which they were spoken and the person to whom they were directed. He then summarized the elements as follows: [12] Under the present section the actus reus of the offence is the uttering of threats of death or serious bodily harm. The mens rea is that the words be spoken or written as threat to cause death or serious bodily harm; that is, they were meant to intimidate or to be taken seriously. [13] To determine if reasonable person would consider that the words were uttered as threat the court must regard them objectively, and review them in light of the circumstances in which they were uttered, the manner in which they were spoken, and the person to whom they were addressed. [36] The elements then of the charge against the appellant were: that on or about October 25, 2007 at or near Antigonish, Nova Scotia an electronic email transmission was sent to Martin Van Bommel; the electronic email transmission contained threat to cause death to Martin Van Bommel; the identity of the accused as the person who knowingly sent the email that the accused intended the email message to intimidate or be taken seriously by Martin Van Bommel. [37] The appellant argues there was no legitimate reason to call Mark MacAulay; that not only was his evidence totally irrelevant to the charges, worse, that the evidence given by MacAulay was rife with hearsay and very prejudicial to the appellant. In particular, the evidence called by the Crown raised issues regarding the appellant’s mental health, leaving the impression with the court that he suffered from psychiatric illness and would therefore be person more likely to have knowingly uttered threat to Professor Van Bommel. It was as well they now say, direct attempt to weaken the appellant’s credibility. [38] As noted earlier, the appellant objected to the Crown calling Mark MacAulay as witness, contending that he had no relevant evidence to give. The respondent at trial offered no justification as to why they were calling Mr. MacAulay as witness. The trial judge did not enter into formal or informal voir dire to determine if MacAulay had any relevant evidence to give. He simply directed: “Well, we’ll hear what his evidence is, okay and then you can ask him questions.” [39] Many of the complaints by the appellant are well founded. But one example is necessary. In the course of MacAulay’s evidence, the Crown pursued the following line of questions: Okay. And as result of what you received from Mr. Van Bommel, what happened with Mr. Buckley in terms of his status as student? A. Well, at that point he was still “a student” and you know as far as we were concerned we were concerned about mental health issues Q. Right. A. it was not his status as student. Q. And I’m sorry, “it wasn’t -” A. It wasn’t his status as as student that we were concerned about. Q. Okay. Did the university ultimately take any steps with respect to his status as student as result of the e-mails to Mr. Van Bommel? A. No, what happened is he withdrew later on on his on his own. Okay. And as far as you’re aware Uh-huh? Q. did he ever receive any treatment other than through you said your health centre A. Yes. Q. at the university? Q. Are you aware of any other treatment and program that he was involved in? MR. BUCKLEY: Objection, Your Honour. THE COURT: Why? MR. BUCKLEY: My mental health is irrelevant in this case. THE COURT: Ah Ms.. MS. OKO: That’s fine. MS. OKO: won’t pursue [40] Despite this agreement further details emerged: MS. OKO: Did you ever speak with Mr. Buckley directly about what had been sent to Mr. Van Bommel? Yes, did. Like over the phone, we had talked about it. It was after the fact, but in between it was not directly. What had happened at that point was became aware of the e-mail. A. consulted with physician, Doctor Steeves, who is one of the person’s Doctor Brian Steeves he’s on call he does on-call psychiatry and he consulted with Doctor Rahman and he called and Doctor Rahman had met with Jason earlier and it was at that point that Doctor Rahman said there’s just too many unknowns here and he should be remanded for 30-days so then we called the RCMP. [41] On appeal the respondent did not address any of the instances of prejudicial or hearsay evidence that came in through this witness. Instead it took the position that the evidence was part of the “narrative”, giving context to such events as Professor Van Bommel’s discussions with Mr. MacAulay before the email of October 24, 2007 and why Van Bommel subsequently sent the email to MacAulay. In addition it says that the evidence played no part in the decision of the trial judge. No mention of it is found in the judge’s reasons and hence no indication that the appellant was prejudiced by the admission of this evidence. [42] Paciocco and Stuesser in The Law of Evidence, 4th ed 2005) voice well put caution about admitting extraneous evidence under the rubric of being part of the “narrative”: It is inevitable that in narrating story, even in response to questions, witnesses will include minutiae that do not meet the tests of relevance and materiality. For example, the trier of fact is likely to learn what police officer was doing when call was received, whether the police officer was in marked or an unmarked police vehicle, and perhaps even the kind of doughnut he was eating. This is harmless background material, and reference to it is generally tolerated because it improves comprehension by presenting total picture and makes it easier for the witness to recount the evidence. If theory is required to account for its reception, it can be said to be admissible as part of the narrative. The idea that evidence can be admitted because it forms part of the "narrative" or part of the story is potentially dangerous one. It has been used, sometimes successfully, as way to get otherwise inadmissible evidence before the trier of fact. For example, if two co‑accused committed robbery after escaping from prison, the narrative might include how they came to be together, and hence their criminal background. Yet there are rules of evidence designed to prevent their bad character from being proved. Where evidence that forms part of the narrative is potentially prejudicial or would otherwise be inadmissible, it can be excluded or edited pursuant to the judge's exclusionary discretion, and great care should be undertaken before it is received. court should always consider how necessary the information is to unfold the story in clear, understandable manner [43] In my opinion, much of Mark MacAulay’s testimony was irrelevant to any issue. Some of it was irrelevant and prejudicial. Nonetheless there were subjects addressed by MacAulay that were not only relevant, but helpful to what perceive to have been the theory of the defence at trial. For example, it appears that the only reason that Professor Van Bommel sent the email of October 24, 2007 to anyone was because of Mr. MacAulay’s request to let him know of any unusual behaviour by the appellant. It was MacAulay who contacted the police. This supported the position of the appellant at trial, that he did not intend to threaten Professor Van Bommel and that Van Bommel did not take the words in the attachment as threat. Although Van Bommel expressed feeling disturbed by finding the words HAHA good job, but am going to kill you” and “me so horny”, he did not feel threatened and did not contact the police. MacAulay’s evidence corroborated Van Bommel’s evidence about why he had forwarded the email to MacAulay and explained how the police came to be involved. [44] With all due respect to the appellant, am not convinced that evidence as to the appellant’s state of mind was not relevant. There was no evidence of any animosity between the appellant and Professor Van Bommel. He had no motive or reason to send him threat. His mental state would be relevant to the issue of intent. am not convinced that some of the evidence of Mr. MacAulay that spoke to the appellant’s state of mind was inadmissible, nor entirely unhelpful to the appellant. It was the appellant’s explanation to Professor Van Bommel that some unknown person or persons were monitoring his key strokes. The reason he had typed the words into the program was to get reaction from them, not to threaten Van Bommel. [45] The evidence of Mr. MacAulay certainly suggested that the appellant had a psychiatric illness and was a dangerous person requiring mandatory hospitalization before and after the October 24 email. In my opinion this evidence was inadmissible as its prejudicial effect outweighed its probative value. To the extent Mr. MacAulay’s evidence related facts or views that were hearsay, it was inadmissible. It was therefore an error in law to have permitted the Crown to adduce this evidence. [46] Neither the appellant nor the respondent referred to s.686(1)(b)(iii) of the Code or any case law on its application. This section permits this Court to dismiss an appeal despite an error of law if satisfied no substantial wrong or miscarriage of justice occurred. The burden is on the Crown to satisfy me that notwithstanding the error the result would necessarily have been the same (see Colpitts v. The Queen, 1965 CanLII (SCC), [1965] S.C.R. 739). [47] The respondent argues that the judge did not refer to any of this evidence in the course of giving his reasons. Ordinarily where trial judge has heard inadmissible evidence, but expressly does not rely on such evidence in convicting, the proviso set out in s.686(1)(b)(iii) can be relied on to dismiss the appeal (R. v. Leaney, 1989 CanLII 28 (SCC), [1989] S.C.R. 393). am concerned about the appearance of unfairness to the appellant and the potential that the trial judge did not disabuse himself of at least some of this inadmissible evidence when he made findings of credibility against the appellant. This concern is exacerbated by the questions put to the appellant in cross-examination by the Crown that also introduced inadmissible evidence. The proviso issue should not be assessed in isolation, but considered in light of any other errors that may have occurred at trial. Cross Examination of the Appellant [48] The appellant’s direct examination was but one statement. It bears repeating: Yes, I’d like to start by saying never knowingly threatened Martin Von Bommel (sic) or any person for that matter now that I’m here. I’ve never knowingly threatened anyone or or or umm I’m not I’ve never knowingly made threats. [49] The Crown cross-examined the appellant extensively on the suggestion that he had threatened the President of the university in 2005. The following is the exchange of questions and answers: Q. see. Mr. Buckley, you’ve made couple of comments in your evidence-in-chief. You said, “I have never knowingly threatened anyone.” “I have never knowingly made threats.” That’s what you said? All right. A. that was under oath as well. All right. Mr. Buckley, in 2005, you were suspended from the university for sending an e-mail to the President, threatening to kill him, is that correct? A. That is incorrect. Q. Do you deny that? A. Wholeheartedly. Q. Okay. And do also understand in 2005 you posted some e-mails on message board that was threatening to the university and some of the university staff concerning finances and what they were charging you. Is that correct? A. No, that’s not correct. Q. So you deny that as well. A. That’s yeah, that’s grossly misrepresented. Q. Did you come to court with respect to those matters? Q. Did you have to go and see doctor as result of those matters? Q. Did you ever see doctor about what happened at the university that caused you to be suspended in 2005? A. see many doctors at the university. Okay. Are you under the care of any psychiatrist at the moment? All right. And do you have medical doctor or family doctor that you see on regular basis? A. Annual check-ups. Q. Okay. Why did you withdraw from the university after October 25th, 2007? A. was attempting to not hamper my GPA. was in uh believe it’s Burnside M.I.O.U. for 30-day (thirty-day) assessment. After that so during that time tried to get halt on my classes withdraw from classes, which did. got withdrawn from classes ah– mostly because where was away for 30 (thirty) days felt it greatly reduced my ability to function properly. Q. Okay. And that’s when you had psychiatric assessment for 30-days (thirty-days) as result of this charge? Correct. That’s what that’s what hampered my academic standing. All right. And did you have an opportunity to read the report that was generated as result of your 30-day (thirty-day) stay? A. Ah did read report ah– from Mr. Pottle or Doctor Pottle ah he I’m not sure how got hold of that report actually, ma’am Q. Okay. But A. but Q. but you read it? A. Yeah, just the other day did read report ah that basically umm paraphrased what happened over the 30-days (thirty days) Q. Okay. A. in the M.I.O.U. [50] The appellant takes the position that the questions by the Crown were improper since the Crown did not call evidence to substantiate its suggestions, and by failing to do so, left the wrong impression with the trial judge that such an event had occurred. In essence, the information the Crown put to the appellant was not accurate and this was therefore grossly prejudicial. [51] The respondent’s position is the appellant put his character in issue by his testimony, and that the Crown could therefore put prior acts of misconduct in cross-examination. [52] The Crown also took strong exception to the suggestion by the appellant that information put to the appellant in cross-examination was not accurate. Neither party submitted any authorities in support of their respective positions. [53] The Supreme Court of Canada in R. v. Lyttle, 2004 SCC (CanLII), [2004] S.C.R. 193 clarified that defence counsel can cross-examine Crown witness on matters that he or she may not be able to prove directly so long as counsel has good faith basis for asking the question. This right is not unlimited. It does not extend to asking questions that are reckless, or false, or relate to, or rely on inadmissable evidence. The suggested procedure is that set out by Major and Fish, JJ.: [51] trial judge must balance the rights of an accused to receive fair trial with the need to prevent unethical cross‑examination. There will thus be instances where trial judge will want to ensure that "counsel [is] not merely taking random shot at reputation imprudently exposed or asking groundless question to waft an unwarranted innuendo into the jury box". See Michelson v. United States, 335 U.S. 469 (1948), at p. 481, per Jackson J. [52] Where question implies the existence of disputed factual predicate that is manifestly tenuous or suspect, trial judge may properly take appropriate steps, by conducting voir dire or otherwise, to seek and obtain counsel's assurance that good faith basis exists for putting the question. If the judge is satisfied in this regard and the question is not otherwise prohibited, counsel should be permitted to put the question to the witness. [54] These comments were made in the context of proposed defence cross-examination of Crown witness. It seems obvious that the underlying concern would apply with greater force where it is the Crown seeking to cross-examine an accused See for example R. v. Mallory 2007 ONCA 46 (CanLII), 217 C.C.C. (3d) 266). [55] In this trial there was no one to object to the line of cross-examination by the Crown. The Crown says it had ample good faith basis to put its questions about other threats to the accused. The appellant does not agree. The Crown, in its written and oral submissions, made reference to “details” in its “disclosure package”. do not have the disclosure package. No attempt has been made by the respondent to introduce any of the package. [56] need not consider if the Crown did or did not have good faith basis for the questions it asked. The complaint made by the appellant is that the Crown failed to adduce evidence in reply to prove the suggestions it made to the appellant during cross-examination. [57] The Crown argues that the appellant put his character into issue by his evidence that I’d like to start by saying never knowingly threatened Martin Van Bommel or any person for that matter now that I’m here. I’ve never knowingly threatened anyone or or– or– umm–I’m not– I’ve never knowingly made threats.” It can be difficult question as to when an accused puts his or her character into issue. Where an accused is self-represented at trial, the trial judge should be slow to conclude that such an accused has put his or her character into issue. In my opinion, the appellant did not so. He did not testify that he was not the sort of person who would do such thing. He did not, as the accused in R. v. Farrant 1983 CanLII 118 (SCC), [1983] S.C.R. 124, claim that it was not in his character to be violent. The appellant simply denied that he had ever knowingly threatened Martin Van Bommel or anyone. [58] The context of the appellant's evidence has be considered. The words alleged to have been threat against Martin Van Bommel were in file attached to an email. The attachment was computer program. It contained number of unusual phrases. As described earlier, one of the phrases was "HAHA, good job but now am going to kill you". It was not specifically directed to Van Bommel, or to anyone for that matter. Given this context, the direct evidence of the appellant could well have been simply denial that the phrase in the attachment was ever meant to be threat to anyone. [59] There was no application by the Crown to obtain ruling from the trial judge that the evidence of the appellant put his character in issue. The appellant was self-represented. The trial judge should have intervened to ensure the appellant was intending to put his character in issue, and that he understood the potential consequences of doing so, and ultimately make ruling as to whether or not he put his character in issue. [60] In any event, even if it could be said that he did put his character into issue, it is certainly arguable that the law does not permit the cross-examination that ensued. In R. v. Wadey (1935), 40 Cr. App. R. 104 the accused was charged with indecent assault in relation to three complainants. At trial he put his character in issue. In cross-examination he was asked number of questions with regard to previous complaints by other young girls suggesting similar conduct. Those other complaints had either been dismissed or did not lead to charges. The court held that such cross-examination was inadmissable and the conviction was quashed. [61] While an ordinary witness may be cross- examined as to prior discreditable acts, there are well recognized differences where an accused takes the witness stand (see R. v. Koufis, 1941 CanLII 55 (SCC), [1941] S.C.R. 481; R. v. Davison, DeRosie and MacArthur (1974), 1974 CanLII 787 (ON CA), 20 C.C.C. (2d) 424 (Ont.C.A.) ). There does appear to be some authority for the proposition that if an accused puts his or her character in issue, the Crown may cross-examine on prior specific acts of misconduct (See R. v. McNamara et al. (1981), 1981 CanLII 3120 (ON CA), 56 C.C.C. (2d) 193 (Ont.C.A.) at 346-352). However, aside from the discretion by trial judge to permit the Crown to lead similar fact evidence in reply to evidence of good character, the Crown is not permitted to lead evidence of specific acts of bad conduct. In R. v. Brown (1999), 1999 CanLII 2539 (ON CA), 137 C.C.C. (3d) 400 Rosenberg J.A. wrote: [32] The law as it has developed to date is that where the Crown proposes to call extrinsic evidence in reply, solely to rebut evidence of the accused's good character, the Crown may not lead evidence of specific acts of bad conduct. The only established exception to this rule is for acts that would also constitute evidence of similar facts. Otherwise, the Crown is limited to leading evidence of general reputation, the accused's criminal record pursuant to s. 666 of the Criminal Code, or s. 12 of the Canada Evidence Act if the accused testifies, or possibly expert evidence of disposition. See R. v. McNamara et al. (No.1) at 348‑49; R. v. Tierney (1982), 1982 CanLII 3669 (ON CA), 70 C.C.C. (2d) 481 (Ont. C.A.) at 485‑86; R. v. Donovan (1991), 1991 CanLII 11717 (ON CA), 65 C.C.C. (3d) 511 (Ont. C.A.) at 534‑5. [62] Wigmore On Evidence Tillers Revision, 1983, Little Brown Company) summarizes the law as follows: .. It has already been seen (§58 supra) that if defendant in criminal case chooses to offer his good character (for the appropriate trait) as an argument that he probably did not commit the offense charged, the prosecution may by counterevidence dispute the existence in him of the good character thus alleged; and it has also been seen that the fact thus to be proved or disproved is the real disposition or character of the defendant, of which reputation or anything else is merely evidence (§52 supra). The question thus arises of how the character is to be proved or disproved. It has been noted (§§52 and 53 supra) that there are three conceivable ways of evidencing character: (1) reputation of the community, which is open to the objection of being hearsay (§1608 infra); (2) personal knowledge or opinion of those who know the defendant, which is open to the objection of the opinion rule (§1980 infra); (3) particular acts of the defendant’s misconduct exhibiting the particular trait involved. This last sort of evidence is now to be considered. The law here declares general and absolute rule of exclusion. It is forbidden, in showing that the defendant has not the good character that he affirms, to resort to particular acts of misconduct by him. [63] This begs the question, if evidence of prior specific acts of misconduct is inadmissible in reply, how is it that the Crown can be permitted to ask such questions in cross-examination. need not answer the question to dispose of this appeal. The complaint by the appellant was that the Crown should have, if it had the evidence, led it in reply. For the reasons already expressed, the evidence was not admissible in reply to rebut what the Crown alleges was the good character evidence of the appellant. [64] If the appellant did not put his character in issue by his denial of ever having knowingly threatened anyone, the questions were impermissible. But what is the impact of these questions? It appears clear that no charge was ever laid against the appellant with respect to the allegation that he had threatened the President of the university in 2005. Not having been convicted, the Crown was stuck with the answer given by the appellant in cross-examination, that he had not in fact threatened the President. If the trial had occurred before jury, there is no doubt that an appropriate direction to the jury would have been required as to the use they could make of the evidence. [65] Here the trial was before very experienced trial judge. In the judge’s reasons it is difficult to be certain of the impact of the cross-examination. The only reference in the decision to this evidence was: Now, Mr. Buckley testified that he never threatened anybody, he wouldn’t threaten anybody, he’s never threatened anybody, although he was cross-examined quite vigorously on that issue. [66] In my opinion the cross-examination of the appellant was improper. There was no application by the Crown to obtain ruling from the trial judge that the accused may have put his character in issue. The appellant was self-represented. The trial judge should have intervened to ensure that the appellant understood the potential consequences if in fact he was deciding to put his character in issue. Furthermore the cross-examination was about the very kind of act that he was on trial for–uttering death threat by email. The cross-examination was highly prejudicial; as was the Crown’s questions of the appellant about the doctors he may have seen in 2005; was he under the care of psychiatrist; the fact he had undergone 30 day psychiatric assessment in relation to the charge before the Court; and whether he had read the report. These questions appeared to be designed to paint the appellant as someone who had, and was still suffering from, psychiatric illness and therefore more likely to have committed the offence before the Court, or not be credible. [67] will deal with the appropriate remedy later. Unreasonable Verdict [68] An appeal from summary conviction offence is governed by s. 822 of the Criminal Code, which in turn adopts the relevant provisions of the Code for appeals from conviction of indictable offences (ss. 683 to 689). Section 686 provides: 686(1) On the hearing of an appeal against conviction or against verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal (a) may allow the appeal where it is of the opinion that (i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of wrong decision on question of law, or (iii) on any ground there was miscarriage of justice; [69] The appellant did not specifically identify the grounds upon which he sought to overturn the verdict. [70] In terms of the standard of review to be applied, where it is question of law, it is correctness; where it is contended that the verdict is unreasonable, am required to give considerable deference to the advantages afforded to trial judge, and not to substitute my view of the facts for that of the trial judge. This does not mean that the findings of fact by trial judge, even those in relation to credibility, are immune from appellate review. This was confirmed by McLachlin C.J. in R. v. W. R.), 1992 CanLII 56 (SCC), [1992] S.C.R. 122, where she concluded: [20] It is thus clear that court of appeal, in determining whether the trier of fact could reasonably have reached the conclusion that the accused is guilty beyond reasonable doubt, must re‑examine, and to some extent at least, reweigh and consider the effect of the evidence. The only question remaining is whether this rule applies to verdicts based on findings of credibility. In my opinion, it does. The test remains the same: could jury or judge properly instructed and acting reasonably have convicted? That said, in applying the test the court of appeal should show great deference to findings of credibility made at trial. This Court has repeatedly affirmed the importance of taking into account the special position of the trier of fact on matters of credibility: White v. The King, 1947 CanLII (SCC), [1947] S.C.R. 268, at p. 272; R. v. M. (S.H.), 1989 CanLII 31 (SCC), [1989] S.C.R. 446, at pp. 465‑66. The trial judge has the advantage, denied to the appellate court, of seeing and hearing the evidence of witnesses. However, as matter of law it remains open to an appellate court to overturn verdict based on findings of credibility where, after considering all the evidence and having due regard to the advantages afforded to the trial judge, it concludes that the verdict is unreasonable. [71] Here the trial judge concluded that the evidence of the appellant was not credible and rejected it. The trial judge did not give lengthy reasons for doing so: Mr. Buckley’s testimony to the contrary today although at different times he conceded some of these points, at other times he denied them, is not credible. It certainly does not accord with the preponderance of all of the probabilities, given what he had said at the Math Lab and his evidence today to the contrary is rejected and it certainly doesn’t raise reasonable doubt as to certainly what he did or, in my opinion, what he intended to do. [72] need not review the reasonableness of the conclusion of the trial judge as to the credibility of the accused. What is fatal to the validity of the trial judge’s conclusion on credibility is the extent of inadmissible evidence adduced by the Crown in direct and in cross-examination of the appellant. It was unfair to permit the Crown to cross-examine the appellant on specific acts of alleged misconduct, particularly where they alleged the very same act. It was highly prejudicial and clearly put the appellant in poor light. This includes the suggestion that the appellant had a psychiatric illness, both before and after the email was sent, as long ago as 2005. [73] There were also several instances where the Crown, in the course of cross-examining the appellant, misstated the evidence to him. have already detailed the inadmissible evidence in direct and in cross-examination. Before cataloguing the misstatement of evidence to the accused in cross-examination, it is convenient to first focus on failure of the Crown and the trial judge to consider and resolve one of the essential elements of the offence. [74] set out earlier the essential elements of the offence that the Crown was required to prove beyond reasonable doubt. For convenience will repeat them. They are as follows: that on or about October 25, 2007 at or near Antigonish, Nova Scotia an electronic email transmission was sent to Martin VanBommel; the electronic email transmission contained threat to cause death to Martin Van Bommel; the identity of the accused as the person who knowingly sent the email that the accused intended the email message to intimidate or be taken seriously by Martin Van Bommel. [75] The issue that the Crown and trial judge failed to address was whether the appellant in fact knowingly uttered what the trial judge found to be threat–that is the words in the attachment (Exhibit #2). The Crown in essence argued that the only issue was whether the appellant meant the threat to be taken seriously and suggested that Mr. Van Bommel took it seriously as threat. The trial judge said: The issue really here, is what was his intention when he forwarded this message, in particular the one that described and what inferences can be drawn from what he said to Professor Van Bommel the next day? [76] With all due respect, the evidence of the appellant was that he was the author of the attachment. He testified that he had typed the words in order to get reaction from whoever was monitoring his key strokes. When the Crown asked him if he had sent the attachment to have Van Bommel take look at it, the appellant admitted he would often send such attachments to Van Bommel, but could not admit sending this one, as this attachment was program that was more mature, that he had attached an attachment the first time, it was definitely not Exhibit #2 and when he got return to sender quickly, he in haste, did attach another one, and it was good chance it was Exhibit #2. [77] After then cross-examining the appellant on the allegations he had made threats in 2005 by email and was under psychiatric care, the appellant denied that the words were threat. He explained that when the program is booted up, you would not see those words. He then elaborated that he had not looked at the attachment (Exhibit 2) he had sent to Professor Van Bommel. The Crown turned to the conversation between Van Bommel and the appellant at the Math Resource Centre on October 25, 2007. [78] The appellant repeated that he did not think he had sent Exhibit #2 to Van Bommel. The following is the full exchange: Q. Uh-huh. We were talking about the Math Resource Centre and you talking to Mr. Van Bommel. A. Yes, yes, came early the next morning before the mid-term ah because checked my e-mail, but my in-box was so full that did not receive his reply. Q. You talked to him in person at the Math Resource Centre, Mr. Buckley. Yes, yes. went in and asked for ah my program, if it was working, why it wasn’t working because it should have been working. A. You know, he said didn’t have semi-colons in it. was pretty sure there were semi-colons. Umm Q. Mr. Buckley, he also told you he was disturbed by the words contained in that program, including, “I’m going to kill you.”, right? A. And and that’s what shocked me because didn’t think sent him this exact program. Not that I’m ashamed that did Q. Okay, but you didn’t tell him that. You told him that you sent it to get reaction. A. No, did tell him that. said, “Whoa –“, go because he said, you know, that really concerned me and and was flabbergasted. didn’t know what what concerned him and said, “Excuse me.” and then this this is what he handed me. A. And that’s when said, “Oh. Oh, wow.” go “There’s no way I’d send you that.” Q. You told him that you sent it to get reaction. Do you deny saying that to Mr. Van Bommel? A. [No response] Q. That’s what you said to him, Mr. Buckley. You said, “Someone was monitoring –“ your keyboard” or your computer.” and you sent it to him to get reaction. Q. Do you remember saying that? A. Well, at one at one time probably said something ah very close to that. Umm think but you see you’re putting more emphasis on the “reaction”. was putting more emphasis on the fact that there’s watch dog group monitoring my every key stroke. Umm was was more or less searching for leads. [79] It is abundantly clear from the evidence of the appellant that it was very much live issue as to whether or not he had knowingly sent the attachment that contained the words alleged to be threat. No reference was made by the Crown or by the trial judge to this important issue. Unfortunately the appellant was self-represented at trial. In my opinion, the failure to deal with an issue raised by the defence, where reasonable doubt about such an issue would mandate an acquittal, amounts to an error in law. This alone makes the verdict unsustainable and mandates new trial. prefer not to rest my decision on this issue. [80] The significance of this evidence should have been obvious. Why it was overlooked is, suspect, at least in part due to the repeated misstatement by the Crown not just to the appellant but to the trial judge as well as to what was said by the appellant. [81] In the exchange during the appellant’s cross-examination the Crown repeatedly misquoted or misstated the evidence of Van Bommel to the appellant. The Crown suggested You told him that you sent it to get reaction. Do you deny saying that to Mr. Van Bommel?; and, “That’s what you said to him, Mr. Buckley. You said, Someone was monitoring–“your–“keyboard–or your –“–computer.’–and you sent it to him to get reaction.” This was patently not the evidence of Mr. Van Bommel at all. He testified in direct, and again on questions by the trial judge, that the appellant had explained he had typed those words to get reaction from whoever was monitoring his keystrokes. At no time did Mr. Van Bommel or the appellant ever testify that the appellant had sent the attachment to Van Bommel to get reaction from Van Bommel. [82] have already referred to the duty on an appellate court in reviewing verdict. The test is the same whether it is jury trial or judge alone. The general principles for reviewing verdict were set out in R. v. Biniaris 2000 SCC 15 (CanLII), [2000] S.C.R. 381. Arbour J. in delivering the reasons for judgment for the court, wrote: [36] The test for an appellate court determining whether the verdict of jury or the judgment of trial judge is unreasonable or cannot be supported by the evidence has been unequivocally expressed in Yebes as follows: [C]urial review is invited whenever jury goes beyond reasonable standard... [T]he test is 'whether the verdict is one that properly instructed jury acting judicially, could reasonably have rendered'. (Yebes, supra, at p. 185 (quoting Corbett v. The Queen, 1973 CanLII 199 (SCC), [1975] S.C.R. 275, at p. 282, per Pigeon J.).) That formulation of the test imports both an objective assessment and, to some extent, subjective one. It requires the appeal court to determine what verdict reasonable jury, properly instructed, could judicially have arrived at, and, in doing so, to review, analyse and, within the limits of appellate disadvantage, weigh the evidence. This latter process is usually understood as referring to subjective exercise, requiring the appeal court to examine the weight of the evidence, rather than its bare sufficiency. The test is therefore mixed, and it is more helpful to articulate what the application of that test entails, than to characterize it as either an objective or subjective test. [37] The Yebes test is expressed in terms of verdict reached by jury. It is, however, equally applicable to the judgment of judge sitting at trial without jury. The review for unreasonableness on appeal is different, however, and somewhat easier when the judgment under attack is that of single judge, at least when reasons for judgment of some substance are provided. In those cases, the reviewing appellate court may be able to identify flaw in the evaluation of the evidence, or in the analysis, that will serve to explain the unreasonable conclusion reached, and justify the reversal. [83] One of the essential elements the Crown was required to prove beyond reasonable doubt was did the accused utter threat to Martin Van Bommel to cause death to him. The words themselves did not contain direct threat to do any such thing. The attachment was program with many characters and some text. Included were such phrases as “cootie, twinki, bikini;\\par”; and “cout << have nice day\\par; and “cout << “me so horny”;\\par”; and “cout<<“HAHA good job, but am going to kill you”;\\par” [84] The uncontradicted evidence of Professor Van Bommel was that he did not feel the phrase in the attachment (Exhibit #2) “but am going to kill you” were directed at him. Van Bommel found that phrase, and the phrase “me so horny”, to be disturbing. He forwarded the email to Mr. MacAulay because of his earlier request to advise him of any unusual behaviour by the appellant. [85] There is considerable authority for the proposition that the question whether words uttered amount to threat is question of law and not one of fact. In R. v. McCraw, 1991 CanLII 29 (SCC), [1991] S.C.R. 72, Cory J., for the court, wrote: [26] At the outset should state that in my view the decision as to whether the written or spoken words in question constitutes threat to cause serious bodily harm is an issue of law and not of fact. How then should court approach the issue? The structure and wording of s. 264.1(1)(a) indicate that the nature of the threat must be looked at objectively; that is, as it would be by the ordinary reasonable person. The words which are said to constitute threat must be looked at in light of various factors. They must be considered objectively and within the context of all the written words or conversation in which they occurred. As well, some thought must be given to the situation of the recipient of the threat. [27] The question to be resolved may be put in the following way. Looked at objectively, in the context of all the words written or spoken and having regard to the person to whom they were directed, would the questioned words convey threat of serious bodily harm to reasonable person? [86] This was the approach adopted by the Ontario Court of Appeal in R. v. Batista 2009 ONCA 804 (CanLII) (2008) 238 C.C.C. (3d) 97. There the impugned words were in poem the appellant had posted that contained words parking enforcement officer, police officer and the complainant, found to be threat to cause death to the complainant. The trial judge was found to have erred by not construing and considering the words as they would be by the “average reasonable person”. Epstein J.A., writing the judgment for the court, approached the issue whether reasonable person would find the words used to be threat keeping in mind the context of the Criminal Code enactment was to protect against fear and intimidation. The reasonable person must be objective, fully-informed, right-minded, dispassionate, practical and realistic. [87] need not come to any firm conclusion on whether this issue is strictly question of law or whether the trial judge articulated and applied the correct legal test, as it is my opinion, the conclusion the appellant intended to threaten to cause death to Martin Van Bommel was unreasonable. [88] The trial judge did not accept the evidence of the appellant. The reason he did so was because it did not accord with the preponderance of all of the probabilities, “given what he had said at the Math Lab” and his evidence at trial was therefore rejected. With respect, there was nothing in his evidence at trial that was at odds to the evidence of what he had said at the Math Lab. [89] In any event, rejection of his evidence cannot assist in establishing the essential elements of the offence. As noted earlier, the trial judge found that the only issue is what was the appellant’s intention, and what inferences could be drawn from what the appellant said to Professor Van Bommel on October 25, 2007 (at the Math Lab). [90] Where the Crown’s case is based on circumstantial evidence, the reviewing court must be satisfied that the guilt of the accused is the only rational inference to be drawn from the evidence. Cromwell J.A., as he then was, specifically addressed this issue in R. v. Barrett, 2004 NSCA 38 (CanLII), (2004), 222 N.S.R. (2d) 182. He discussed the correct approach as follows: [18] Yebes, leading case on the reasonable verdict test on appellate review, was case of circumstantial evidence. One of the points argued before the Supreme Court of Canada was that the Court of Appeal had failed to apply the correct test in reviewing the reasonableness of conviction where the evidence against the appellant was entirely circumstantial. Responding to this submission, McIntrye, J. for the Court stated that in applying the unreasonable verdict test, the appellate court must re‑examine and to some extent reweigh and consider the effect of the evidence. This process, he said, will be the same whether the case is based on circumstantial or direct evidence. However, he pointed out that the Court of Appeal had "... rejected all rational inferences offering an alternative to the conclusion of guilt" and that it was "... therefore clear that the law was correctly understood and applied.": at 186. In Yebes the Court acknowledged that evidence of motive and opportunity alone could not meet this standard unless the evidence reasonably supported the conclusion of exclusive opportunity: see 186 190. [19] would conclude that while the test for whether verdict is reasonable is the same in all cases, where the Crown's case is entirely circumstantial, the reasonableness of the verdict must be assessed in light of the requirement that circumstantial evidence be consistent with guilt and inconsistent with innocence: see Yebes at page 185 where this formulation was said to be the equivalent of the requirement that the circumstantial evidence be inconsistent with any rational conclusion other than guilt. This was summed up by Low, J.A. in R. v. Dhillon (2001), 2001 BCCA 555 (CanLII), 158 C.C.C. (3d) 353 (B.C.C.A.). At para 102, he stated that where the Crown's case is entirely circumstantial, the appellate court applying the unreasonable verdict test must determine "... whether properly instructed jury, acting judicially, could have reasonably concluded that the only rational conclusion to be reached from the whole of the evidence is that the appellant..." was guilty. [91] Here the case against the appellant was entirely circumstantial. The exchange between Van Bommel and the appellant figured heavily in the reasons of the trial judge as to what inference was to be drawn. Unfortunately the trial judge misapprehended what the evidence was with respect to that exchange. His reasons were: During the conversation at the Math Lab, Mister or Professor Van Bommel confronted Mr. Buckley about the e-mail. He testified that earlier he had been quite disturbed when he read that and that he had sent it on to other personnel, Mr. MacAulay, in particular, at the university, because of the disturbing nature of the of the contents of the e-mail. He confronted Mr. Buckley about it and Mr. Buckley confirmed that he had in fact sent the e-mail and that he had sent it for specific purpose. He had been concerned that people were monitoring his e-mail and he sent and he included these words, together with other phrases to guess quote the testimony of Professor Van Bommel, to get reaction.” Now it’s quite clear that Mr. Buckley intended to put these words into the e-mail. He intended to send it to Professor Van Bommel and he intended Professor Van Bommel to open the e-mail. The only reasonable inference that one can draw is that he intended Professor Van Bommel to read the contents of the e-mail, including the phrase that just described. It was his intention to get reaction. The only reasonable inference that one can draw or can conclude from all this is that he wanted to get reaction from Professor Van Bommel and, in particular, as result of the words that just described. They were not written in jest. In the context of the of all of the circumstances, they were designed to get reaction. In other words, they were designed to be taken seriously by the reader of the e-mail, in this case, Professor Van Bommel, who was the person was the recipient of the e-mail. They were designed to intimidate him, in the true sense of the word. They were menacing and they were designed to disturb him and upset him, i.e., “Get reaction.”, as he indicated to Mister or to Professor Van Bommel when he met him at the Math Lab. [92] As set out earlier Professor Van Bommel was aware of the appellant’s fear or belief that someone was monitoring his key strokes when he was using his home computer. This fear, rational or otherwise, was not new phenomenon. The appellant had expressed this to Van Bommel weeks before the conversation on October 25, 2007 at the ‘Math Lab’. This expressed fear was one of the reasons the appellant would be in the Math Resource Centre using the computer facilities. The email and attachment came from the appellant’s home computer. [93] Van Bommel, testifying from notes he made of his conversation with the appellant, did not say the email was sent to get reaction, but that the appellant told him he had typed those messages in that file to get reaction from whoever was monitoring his typing. This evidence was repeated when the trial judge questioned Professor Van Bommel: Q. Okay. Okay. Now just to again clarify. He said he “– put these in –“ for what purpose? A. The comment he made was he, “– thought someone was monitoring his typing and he wanted to get reaction.” A. Whoever was monitoring his typing. [94] The trial judge even confirmed with Van Bommel that students at the university have access to computers, which are hooked into network at the university and it is not impossible to monitor somebody’s typing. [95] Contrary to what the trial judge believed, Van Bommel never described that the appellant had expressed concern that people were monitoring his email or that he had sent the email to get reaction. [96] What the appellant actually said to Van Bommel on October 25, 2007 was crucial conversation. It was relied upon by the trial judge to justify the inferences he drew about what the appellant’s intention was. Unfortunately, the trial judge misapprehended this evidence. Without this misapprehension, what inferences would actually be open for trier of fact, properly instructed, and acting reasonably could draw? [97] Leaving aside any issue as to the credibility of the appellant, the inference to be drawn about the appellant’s intention must be based on the view of reasonable person, where that person is fully informed, dispassionate and objective. The Crown at trial advocated that such reasonable person was Professor Van Bommel himself. However, Van Bommel testified he did not take the comment “HAHA good job, but now am going to kill you” as being threat directed at him. [98] Taking into account all of the circumstances, including the words used; the fact they appeared in an attachment as part of a computer program containing other unusual phrases; there was no animosity between the person who received the attachment, Professor Van Bommel and the appellant; and no reason for the appellant to want to intimidate or provoke Van Bommel, it is equally open to infer that the words had been typed in that file to get a reaction from people that the appellant, rationally or otherwise, believed to be monitoring his key strokes, and did not constitute a threat to cause death to Martin Van Bommel, nor can it properly be concluded that the appellant intended to do so. SUMMARY AND CONCLUSION [99] With all due respect to the trial judge, the trial was unsatisfactory in number of respects. The trial judge erred in law in permitting inadmissible evidence to be adduced from Mark MacAulay; in failing to intervene when the Crown assumed that the appellant had put his character in issue and in permitting the Crown to cross-examine the appellant on prior specific acts of misconduct and other extraneous matters. find there was no error in terms of the Crown failing to lead evidence to substantiate the suggestions it made in cross-examination of the appellant. To do so would have been highly improper. [100] The trial judge made findings of credibility against the appellant. The evidence wrongly admitted put the appellant in bad light. While no one instance would necessarily be fatal, the cumulative effect cannot be ignored. The Crown has not satisfied me that the verdict would necessarily have been the same. The normal remedy under s. 686(2) for such errors would be to quash the conviction and order new trial. Instead I quash the conviction and enter an acquittal. do so as result of my conclusion that the trial judge misapprehended significant evidence which led to an unreasonable verdict. [101] In light of my conclusion need not consider the sentence appeal. Beveridge, J.

An unrepresented university student appealed his conviction for uttering threats after he sent an email to his computer science professor requesting his assistance to de-bug a program contained in an attachment. The attachment was text file with lot of extra characters, including messages that read 'good job, but am going to kill you' and 'I am so horny.' Although the professor had not taken the content of the attachment as threat, he had sent it on to university officials as he had been requested to alert them to any odd or unusual behaviour by the student. The student later advised the professor that he had typed the messages because he thought someone was monitoring what he was typing and he was trying to get reaction out of them. He also testified that he had not intended to send that particular attachment to the professor. Appeal allowed; conviction quashed. The trial judge erred in permitting inadmissible evidence to be adduced from the university administration to the effect that the accused had a psychiatric illness and, in failing to intervene when the Crown assumed that the student had put his character in issue and cross-examined him as to alleged prior acts of misconduct and other extraneous matters, the cumulative effect of which was fatal to the trial judge's findings of credibility. The case against the student was entirely circumstantial and it was equally open to infer that the words had been typed in the file to get a reaction from people that the student, rationally or otherwise, believed to be monitoring his keystrokes and did not constitute a threat to cause death to the professor.

e_2009nssc204.txt

J. 1999 SKQB 60 Q.B.G. A.D. 1999 No. 639 929 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: DANIEL TAPP and 626170 SASKATCHEWAN LTD. and WILLIAM KURK and SASKATCHEWAN PROPERTY MANAGEMENT CORPORATION GARNISHEE(RESPONDENT) and A.K. EUTENEIER SONS TRUCKING LTD. RESPONDENT D.S. Tapp for Daniel Tapp G.J. Moran for the Director of Labour Standards JUDGMENT MacDONALD J. September 9, 1999 [1] The plaintiff, Daniel Tapp ("Tapp"), is a practising lawyer in the Province of Saskatchewan. On March 4, 1999, Tapp commenced an action against the defendant, 626170 Saskatchewan Ltd. for fees and disbursements in the amount of $4,647.85. [2] On March 9, 1999, Tapp obtained a garnishee summons issued prior to judgment against the said defendant and served it on Saskatchewan Property Management Corporation ("SPMC"), the proposed garnishee. [3] As a result of that garnishee, the sum of $337.46 was paid into court on April 26, 1999, to the credit of Q.B.G. 639 of 1999. On April 13, 1999, an application was made by SPMC on Q.B.G. 969 of 1999 for an order pursuant to Rules 411 and 415(1) of the Queen's Bench Rules of Court that the sum of $2,521.68 and any further amounts due and owing from SPMC to the defendant company be paid into court and disposed of as the court may direct in full satisfaction of SPMC's obligations to the various parties who may have had a claim against the money. That order was granted by Justice Wright together with costs of the application to SPMC to be taxed. [4] Prior to the application the sum of $2,521.68 had been paid into court on March 30, 1999, on Q.B.G. 929 of 1999 and an additional amount was paid in on that file number on April 26, 1999, in the amount of $968.39. As of that date total of $3,827.53 was paid into court on these two files. [5] On April 29, 1999, the Labour Standards Branch filed notice with the registrar of the Court of Queen's Bench of their claim with respect to potential wage claims owing by the defendant company to its employees pursuant to s. 54 of The Labour Standards Act, R.S.S. 1978, c. L-1. [6] On May 27, 1999, Tapp obtained default judgment against the defendant in the amount of $4,646.85. Tapp then made an ex parte application on May 28, 1999, for payment out of the moneys which had been paid into court by SPMC. The court, however, in view of the third party claim by the Director of Labour Standards directed that the application for payment out should be made by notice of motion and that all parties interested in the funds should be served. [7] Tapp then served all of the various parties potentially interested in the moneys with the notice of motion and the matter was heard on June 17, 1999, in Chambers. On that date the only parties to appear were Tapp in person and counsel for the Minister of Labour. No one appeared on behalf of the other parties. The matter was reserved for decision on that date. At the time of the application for payment out the Minister of Labour had not obtained judgment against the defendant company and there was no certificate of the Minister on file. However, this was later obtained and filed with the local registrar at the judicial centre of Regina on July 12, 1999. [8] Although I agree with counsel for the Minister of Labour that the moneys paid into court according to the decision in the Polyco Window Manufacturing Ltd. v. Prudential Assurance Co., 1994 CanLII 5009 (SK QB), [1994] 5 W.W.R. 659 (Sask. Q.B.) create a fund from which creditors must be paid; in this instance however, the claim by the Minister of Labour as of the date of the application was not a proven claim. No certificate had been issued and no judgment had been entered as of that date. A judgment by Tapp had been filed in May, 1999, so that on June 17, 1999, he was the only party entitled to the moneys. [9] The claim by the Minister of Labour with respect to the funds paid into court as of the date of the application is therefore dismissed. The applicant/plaintiff, Daniel Tapp, shall therefore have payment out to him of all moneys paid into court by Saskatchewan Property Management Corporation with respect to Q.B.G. 639 of 1999, and Q.B.G. 929 of 1999, together with accrued interest less that amount which was previously ordered paid out as costs to SPMC by Justice Wright in the amount of $324.33.

The plaintiff lawyer commenced an action for fees and disbursements in the amount of $4,647.85. The proposed garnishee, SPMC, paid $337.46 into court and brought an application for an order pursuant to Rules 411 and 415(1) of the Queen's Bench Rules of Court. An order that any further amounts due and owing from SPMC to the company be paid into court to be disposed as directed by the court was granted with taxed costs to SPMC. Labour Standards filed notice of potential wage claims. The plaintiff obtained default judgment and made an ex parte application for payment out of the monies paid into court by SPMC. HELD: The applicant/plaintiff was to be paid all monies paid into court by SPMC with respect to the two files together with accrued interest less the amount previously paid out. The claim by the Minister of Labour was dismissed. Although the monies paid into court according to the decision in Polyco Window Manufacturing Ltd v. Prudential Assurance Co create a fund from which creditors must be paid, the claim by the Minister of Labour as of the date of the application was not a proven claim. No certificate had been issued and no judgment had been entered as of that date. A judgment had been filed by the plaintiff. He was the only party entitled to the monies.

c_1999skqb60.txt

F.S.M. A.D. 1995 No. 10 J.C.S. IN THE QUEEN'S BENCH FAMILY LAW DIVISION JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF AN APPLICATION UNDER THE CHILD AND FAMILY SERVICES ACT IN RESPECT OF: [C.C.], born February 24, 1992 Leslie Belloc-Pinder for the Department of Social Services Nicholas Stooshinoff for the mother Graham Dove for the father JUDGMENT BLACKLOCK LINN J. September 26, 1996 This hearing concerns the future of a four and one-half year old girl, [C.C.], who is presently infoster care. The Department is requesting a permanent orderpursuant to s. 37(2) of The Child and Family Services Act,S.S. 1989-90, c. C-7.2. The parents would like to have thechild returned to their care, or alternatively, to have thechild remain with the present foster family on a long-termbasis. The parents, [L.C.] and [J.C.], cared for the child during her first year with the help of parent aide, [F.S.]. Although they needed lot of help, they were able to provide [C.C.] with her physical needs and were bonding with the child. Ms. [F.S.] had serious concerns, however, with the stormy relationship between the parents. The father is 48 years of age and the mother is 24 years of age. The parents were "constantly arguing" according to Ms. [F.S.], and the father was emotionally abusive to the mother, calling her "stupid" and "mentally slow". As the baby got older (four or five months) the parents had much more difficulty managing her. As well, their domestic problems escalated. At one point, due to the father's abuse, the mother left the home for short time. Ms. F.S.] felt the couple needed time to stabilize their relationship and suggested s. agreement. The parents agreed and the child came into care on November 30, 1993. Ms. [F.S.]'s main concerns at that time were two-fold: (1) that the mother needed great deal of help to care for the child, and indeed was not able to do so on her own, and (2) Ms. [F.S.] did not like the way the father treated the mother and felt that he was "hindrance" to the mother in many ways. Other Department witnesses, Cornell Beuker and Laura Haye also testified to serious difficulties in the relationship between the parents and the difficulty that the mother had in caring for the child on her own. The child has now been in the [P.] foster home for nearly three years. The [P.]'s initially cared for [C.C.] under the s. agreement, and then following her apprehension in January, 1995. Clearly, the child is doing very well with the [P.]'s and is receiving excellent care. [C.C.] has been diagnosed as having attention deficit hyperactive disorder and is presently on ritalin two times week with very positive results. The natural parents have access every Friday afternoon for two hours and those visits seem to go well. Fortunately, the [P.]'s have good relationship with the parents and they freely share information with each other. The Department tried longer visits over this past summer, but they have been terminated as result of [C.C.] exhibiting some negative behaviour after the weekend visit. Apparently, the child was slapping herself and saying that her mother had slapped her during the visit. The mother denied this in her testimony and provided another explanation for the child's behaviour. The parents both testified, stating that they wished to have [C.C.] returned to them. They were married in November, 1995 and both say that their relationship is much better than when [C.C.] was in their care. However, the parents also acknowledge that [C.C.] is doing very well in the [P.] foster home, and that if she is not to be returned to them, then they would like her to remain with the [P.]'s. After considering all the evidence, I find that thechild [C.C.] is in need of protection. When theparents had the custody of the child, they were unable toprovide for all her needs, even with considerable assistancefrom the Department. As well, the child was exposed to severedomestic disharmony that could have resulted in emotional harmto her. Although the parents testified that recently theirrelationship has improved, I cannot find, from the evidence,that their ability to provide for [C.C.]'s needs hasimproved significantly. From the evidence of Mrs. [P.], andthe medical report of Dr. McKenna, it is apparent that[C.C.] is a child who requires enormous amounts of care andattention on a daily basis. will not review the evidence of the foster mother in detail except to say that few parents could have coped with child like [C.C.] prior to the assistance of Dr. McKenna. After two years, the foster parents were very nearly at the end of their rope with [C.C.], and Mrs. [P.] was near exhaustion. Since [C.C.] has been on ritalin, her behaviour has improved significantly such that she can now attend pre-school and take dancing lessons. However, Mrs. [P.] made it clear that the ritalin did not perform miracles and that [C.C.] continues to require considerable care and patience. I find that thenatural parents are unable to care for [C.C.] particularlygiven her special needs resulting from the attention deficitdisorder diagnosis. The Department is requesting permanent order so that they have more options in planning for [C.C.]'s future. It is absolutely clear to me, however, that it is in[C.C.]'s best interest to remain where she is and tocontinue to have contact with her natural parents. Given the special needs of [C.C.], it is unlikely that an adoption plan would be made, and indeed to remove this child from the [P.]'s home could be extremely damaging and emotionally traumatic for the child. Mrs. [P.] testified that she and her husband were committed to [C.C.] and would care for her until she was 18. She further stated that they love [C.C.] "like our own" and will not take in any other foster children as long as they have [C.C.]. It goes against all good sense to make any order which might alter the present arrangement for the care of [C.C.]. Therefore, having determined that the child is inneed of protection, and further having determined that it isin [C.C.]'s best interest to remain with the [P.]'s and tocontinue to have visits with her natural parents, I order thatthe child be placed in the custody of the Minister until theage of 18 years. In so doing, I strongly recommend that thechild remain in the [P.] foster home. I further order thatthe natural parents, [L.C.] and [J.C.], havereasonable access to the child.

The Department of Social Services requested a permanent custody order for a four and one-half year child pursuant to s37(2) of the Child and Family Services Act. The parents sought custody, or alternatively, to have the child remain with the present foster family. HELD: The child was placed in the custody of the Minister until the age of 18 years. It was strongly recommended that she remain in the foster parents' home where she had been for three years. The natural parents were to have reasonable access. 1)The child was in need of protection. The parents were unable to provide for all her needs even with the considerable assistance from the Department. She was exposed to severe domestic disharmony which could have resulted in emotional harm. The natural parents' ability to provide for her needs had not improved significantly. The child's special needs resulting from attention deficit disorder required enormous amounts of care and attention on a daily basis. 2)It was in the child's best interests to remain where she was and to continue to have contact with her natural parents.

b_1996canlii6710.txt

QB A.D. 1987 01458 J.C.Y. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF YORKTON BETWEEN: DIANE LYNN HOLMES and CRAIG EDWARD HOLMES RESPONDENT No one for the Petitioner W.M. Rusnak for the Respondent JUDGMENT PRITCHARD J. April 16, 1999 [1] A provisional order was made by the Court of Queen\'s Bench for Alberta at Medicine Hat on May 13, 1998 requiring Craig Edward Holmes to pay Diane Lynn Holmes the sum of $794.00 per month as basic child support for Laurie Janay Holmes born November 1, 1983 and Christopher Holmes born November 21, 1985. The provisional order also requires Mr. Holmes to pay an additional $75.00 per month representing 50% of the orthodontic and dental costs of the child Laurie. The total amount owing monthly under the provisional order is $794.00. [2] The court in Medicine Hat based its provisional order on a finding that Mr. Holmes\' annual income for child support purposes was $55,000.00. On January 22, 1999, Mr. Holmes filed a financial statement with the Court of Queen\'s Bench in Saskatchewan which shows his annual income for Guideline purposes to be $50,064.00 (monthly income of $4,242.00 less monthly union dues of $70.00). Based on the Guidelines and an annual income of $50,064.00, Mr. Holmes is required to pay basic monthly maintenance of $661.00 for two children and the provisional order will be varied to reflect this amount. [3] Mr. Holmes has employer sponsored dental insurance available which will cover significant portion of the orthodontic/dental expenses of the children that are not covered by the plan maintained through their mother's employer. In lieu of payments of $75.00 per month as provisionally ordered, and pursuant to section 6 of the Guidelines, Mr. Holmes is hereby required to obtain and or maintain medical and dental insurance for the children to the extent available through his employer. Mr. Holmes is also directed to provide Ms. Holmes with all necessary information regarding such plans and to forthwith submit all completed claims on behalf of the children that are provided to him by Ms. Holmes and to remit insurance re-imbursement cheques to Ms. Holmes. Mr. Holmes shall also be responsible for one-half of all uninsured medical/dental costs of the children and shall pay such amounts to Ms. Holmes within 10 days of receipt of semi-annual calculations from Ms. Holmes showing receipted medical/dental amounts she has paid on behalf of the children less all insurance proceeds received with respect to such amounts. [4] Based on the foregoing, the provisional variation order of the Honourable Mr. Justice W.V. Hembroff made May 13, 1998 is confirmed subject to the variations specified herein. J.L.G PRITCHARD, J.

A provisional order from the Alberta Court of Queen's Bench required the respondent to pay monthly support based on his income of $55,000 for the couple's two children. He was also required to pay half of the monthly dental expenses. Subsequently, the respondent filed a financial statement showing his income to be $50,064. HELD: The respondent's monthly child support payments are reduced according to the guidelines. The respondent is also required to maintain health and dental insurance for his children through his employer. The Court instructed the respondent on the procedure for submitting the children's health insurance claims. The provisional order was confirmed subject to these specified variations.

3_1999canlii12632.txt

IN THE SUPREME COURT OF NOVA SCOTIA Citation: Hawes v. Yorston, 2006 NSSC 26 Date: 20060126 Docket: S. H. 213739 Registry: Halifax Between: Cathy Hawes Aulden Pottie v. Peter Yorston and Her Majesty the Queen in Right of Canada and Cathy Hawes DECISION Judge: The Honourable Justice John M. Davison Heard: September 14, 15, 16, 20, &23, 2005 and October 13, 2005 at Halifax, NS Last Written Submission: November 8, 2005 Counsel: Mark T. Knox, Counsel for Plaintiff, Aulden Pottie Nancy M. Peers, Counsel for the Plaintiff, Cathy Hawes C. Patricia Mitchell and Clare Bilek, Counsel for the Defendant, Cathy Hawes Michael Owen, Counsel for the Defendants, Peter Yorston and Her Majesty the Queen in Right of Canada Davison, J. [1] This is an action by the plaintiffs, Cathy Hawes and Aulden Pottie, for damages suffered as a result of a motor vehicle accident which occurred on November 23, 1998 at the intersections of Forrest Hills Drive and Main Street in the Dartmouth area of Halifax Regional Municipality. The plaintiffs allege that the accident occurred as a result of the negligence of the defendant, Peter Yorston, in the operation of a Royal Canadian Mounted Police motor vehicle referred to herein as the “police vehicle”. [2] At the time of the accident the plaintiffs were living in common law relationship and they had spent the evening hours visiting various bars and pubs in celebration of birthdays of relatives. Aulden Pottie, Raymond Stevens and his girlfriend, Tara Dunn, were passengers in the motor vehicle owned and operated by Cathy Hawes. They were accompanied by persons in two other motor vehicles. One vehicle was operated by Robert Leckie and his wife, Rhonda, and Gerald and Barbara Forward were passengers. The other vehicle was operated by Craig Borgal. The plaintiff Pottie states that he had six or seven beer that evening and that Cathy Hawes had two White Russians during the course of the whole evening. [3] Following the motor vehicle accident the plaintiff, Cathy Hawes, was requested by attending police officers to undergo breathalyser. She consented and the results were produced in court with the consent of counsel in the form of document which would indicate 0/0 alcohol content. Cathy Hawes testified that she had White Russian and took few sips but the glass in which the liquor was contained was knocked over. find that the plaintiff, Cathy Hawes, consumed very small amount of alcohol and that consumption was not causative factor leading to the motor vehicle accident. Liability for Motor Vehicle Accident [4] Cathy Hawes was operating her motor vehicle which was 1987 Honda Accord and will be referred to as “the Hawes Vehicle.” To operate the headlights of this motor vehicle one would manually move switch in the vehicle. Ms. Hawes was returning to her home and the homes of her passengers in Lake Echo. [5] Vehicles approaching and in the intersection were controlled by traffic control lights. In proceeding to Lake Echo the plaintiff was driving directly through the intersection on a green light. The defendant, Peter Yorston, was an officer in the Royal Canadian Mounted Police and he was operating the police vehicle. He had completed police call in Cherry Brook and approached the intersection travelling in direction opposite to the direction the Hawes vehicle was travelling. There is no dispute the police vehicle turned left in front of the Hawes vehicle before the vehicles collided. [6] The plaintiffs claim the accident was caused solely through the negligence of Mr. Yorston for turning left in front of the Hawes vehicle. There are two issues with respect to liability for the accident. First, the defendants claim the headlights of the Hawes vehicle were not in operation when it approached the intersection and that Ms. Hawes is contributory negligent for driving at 2:00 a.m. on a Sunday morning without turning on the headlights of the vehicle. [7] The second issue on liability relates to the claim of Aulden Pottie. He testified he was not wearing seat belt at the time of the accident and the defendants claim Mr. Pottie is contributory negligent in that the failure to wear seat belt contributed to his injuries. If the plaintiff Hawes is found to be contributory negligent the plaintiff Pottie can recover damages from the named defendants and Ms. Hawes. In the absence of finding of negligence on Ms. Hawes the plaintiff Pottie can only recover damages from the named defendants. [8] Cathy Hawes testified that she had been living in common-law relationship with Aulden Pottie but they had separated about four months before trial. She was pregnant at the time of the accident but the accident did not interfere with her pregnancy and the baby was born with no complications. [9] After visiting number of nightspots the plaintiffs and their friends, in three vehicles, started to drive to Lake Echo. Ms. Hawes testified that it would take about ten minutes to travel from their last point of departure to the accident scene. She says she was travelling at about sixty-five kilometres per hour. [10] Ms. Hawes stated she turned on her headlights before starting the return trip. vehicle operated by Robert Leckie followed Ms. Hawes, and the vehicle being operated by Mr. Borgal was the last to depart. Ms. Hawes stated that the Leckie and the Borgal motor vehicle passed her at dark section on the highway. She said she had no problem with the headlights. She testified that she was about seven or eight car lengths from the intersection when she saw the police vehicle approaching the intersection. [11] Ms. Hawes said the police vehicle turned left “in front of me.” She said it was about car length away from her when it turned and she braked but the vehicles collided. [12] After the accident six or eight Royal Canadian Mounted Police Officers attended on the scene. Ms. Hawes was placed in police motor vehicle and then taken to the Cole Harbour detachment of the Royal Canadian Mounted Police where the breathalyser test was administered. [13] Aulden Pottie is thirty-three years of age and was unemployed at the time of the accident. He was brief in his description of the accident. He said they were proceeding at speed of about sixty-five kilometres an hour and when they reached the intersection the police vehicle turned, without signal light in operation, in front of the Hawes motor vehicle and the collision occurred. [14] Mr. Pottie said the police vehicle was eight to ten car lengths away when he noticed it. He was asked whether the headlights of the Hawes motor vehicle were on at the time of the accident and he said “absolutely.” He was asked how he knew that and he stated that when Ms. Hawes was backing out of her parking spot at their last stop she “blinded” the people in the vehicle operated by Mr. Leckie. He alluded to Ms. Hawes flashing lights at the Leckie vehicle as joke. He also said he remembered the lights shining on the police car at the accident scene. Mr. Pottie remembered the dash lights in the Hawes vehicle being in operation and also mentioned the switch for the lights was “flicked up” which was the position when the lights were in operation. He said no person who occupied vehicle which passed the Hawes vehicle in the opposite direction gave indication the lights were not in operation. [15] Raymond Stevens was passenger in the Hawes vehicle. His girlfriend, Tara, was also passenger. Mr. Stevens said they were proceeding about sixty-five kilometres per hour along route seven highway. He could add little with respect to the accident because he said he had too much to drink and was not paying attention to the operation of the Hawes vehicle. [16] Robert Leckie was driving his vehicle and he had consumed no alcohol that evening. He testified that Ms. Hawes was the first to leave the parking lot and that he was second and Craig Borgal was third. He remembered the headlights of the Hawes vehicle were in operation when they left the parking lot. Leckie passed the Hawes vehicle and he remembered looking in the rearview mirror and Ms. Hawes’ headlights were on. He made reference to it being “pretty dark” near Bens Bakery. He and Craig Borgal were in and out of lanes but he also remembered the tail lights of the Hawes vehicle were in operation. Mr. Leckie stopped for gas beyond the intersection where the accident took place and when Ms. Hawes did not pass he returned to the accident scene. [17] Donald Laidlaw was witness who was not acquainted with the plaintiffs. He was going home after driving his cousin and his wife to their home. He was going down Main Street about fifty feet behind the Hawes vehicle. When they came to the intersection he noticed police vehicle. He believed it was stopped. Then the police car moved directly in front of the Hawes vehicle and he said he “could not believe that action.” Ms. Hawes braked but could not avoid the accident. [18] Mr. Laidlaw was asked whether he noticed anything to suggest that Ms. Hawes’ headlights were not on and he replied in the negative. He said that he did not notice the tail lights being on or being off but if the headlights were off Mr. Laidlaw said he would have flipped his lights at her because he had been following her for some time. He mentioned that it was pretty dark and it was near Bens Bakery which was woodshed area where there are lot of trees. This was consistent with the evidence of Mr. Leckie. Mr. Laidlaw stated, “I would have noticed if the lights were not on.” [19] Krista Leigh Gallant was calling for her husband who was at party in lounge in the strip mall adjacent to the highway. She parked and got out of her vehicle and went to the door of the lounge. She heard the screech of tires. She saw Royal Canadian Mounted Police car stationary at the intersection. Ms. Gallant believed the driver had lost control of his car because she did not see any other person or any other vehicle in the vicinity. [20] Ms. Gallant was unable to enter the lounge, she banged on the window and was admitted to the lounge. She asked the persons in the lounge to phone the police because of the vehicle on the highway. She walked to the police vehicle. She said three to five minutes expired from the time she heard the screech of the brakes until she reached the police vehicle. [21] When she reached the police vehicle she saw another vehicle off the road which was facing the number highway. She said there were no lights in operation on the vehicle. She stayed at the police vehicle as she saw people around the other vehicle which was the Hawes vehicle. She saw pieces of material around the front of that car. [22] Ms. Gallant said the police officer was in great deal of pain and she asked person to call for help. She tried to calm the defendant. [23] The witness was asked if she went to the other car. She said she could remember going over but “not right away.” There were lot of people around the other vehicle together with ambulances and police cars. She said there was lapse of time, about one half hour or forty-five minutes before she proceeded towards the Hawes vehicle. She was asked twice whether she went to the Hawes vehicle and she answered both by stating she remembered being “by there.” have difficulty determining from her evidence how close she came to the Hawes vehicle and the extent of attention she gave to it. The witness agreed her concern was focussed on the police officer. [24] On cross-examination she confirmed she did not see the collision of vehicles and she pointed out the location of the lounge (referred to as Dooley’s) is shown on photograph of Exhibit five. [25] Corporal Ferguson has been an officer in the Royal Canadian Mounted Police for over twenty-seven years. After the motor vehicle accident in this proceeding Cole Harbour Detachment was responsible for the exhibits which included the headlights or portions of headlights of the Hawes motor vehicle. [26] The witness sent message to the exhibit custodian of the detachment to have the exhibits including the headlights destroyed. The officer said at this time he was aware that this civil proceeding was “going on but was not aware there was to be trial in this matter.” He said he was not aware of the amounts that were being claimed in the action by the plaintiffs. [27] Corporal Ferguson said he was advised by another officer it would be wise to preserve the exhibits but when Corporal Ferguson contacted the custodian officer in charge of the exhibits he was told that officer had already destroyed the exhibits. Corporal Ferguson said they had the report of Constable Zildjan and he did not believe, at the time he gave this direction to destroy the exhibits, that the exhibits would be necessary for the civil proceeding. He said if he knew the matter was going to trial the exhibits would not have been destroyed. [28] The explanation given by Corporal Ferguson is difficult to understand. The circumstances involved motor vehicle accident which involved Royal Canadian Mounted Police vehicle. The destruction prevented the plaintiffs from examining the headlights. Notwithstanding these circumstances, do not find the destruction of the exhibits was an action involving bad faith on the part of Corporal Ferguson. It could be described as an erroneous act or even negligent act but accept that which Corporal Ferguson stated in his evidence and conclude he made mistake but not for the purpose of permitting the defendants to gain advantage over the plaintiffs in this proceeding. [29] Corporal Peter Yorston stated he was coming from Cherry Brook and going to the Cole Harbour Detachment of the RCMP. He was driving Chevrolet Lumina which was marked police car. Before the accident at the intersection of Forrest Hills Drive and Main Street in Dartmouth, Nova Scotia he was proceeding in westerly direction. The defendant described the sky as overcast and the lighting at the intersection as “dull”. He did not suggest there was fog. He said the intersection was “not well lit.” [30] As the defendant approached the intersection he put on his directional light and pulled into the left hand turn area. When he performed that manoeuver he saw headlights go into operation on vehicle in parking lot away from the intersection and to the right side of the police vehicle. He saw the vehicle move and he turned back to look at the highway in front of the police vehicle. He saw motor vehicle by the western entrance to the Irving Station which, he said, was 200 metres from the intersection. He commenced his left hand turn and the vehicle he was operating was struck in the intersection by the Hawes vehicle. [31] Corporal Yorston did not see the plaintiff’s motor vehicle before impact and was unable to say whether the plaintiff’s headlights were in operation before the accident. The defendant did not see vehicle which was following the plaintiff’s vehicle and which was the vehicle operated by Mr. Laidlaw who testified he was about fifty feet behind the Hawes vehicle. Mr. Laidlaw also stated he noticed the police car move directly in front of the Hawes vehicle. The only vehicle observed by Corporal Yorston was 200 metres away at the Irving station. [32] During cross-examination the defendant gave detailed evidence of where he was on the highway and finite details as to his speed at those locations. found that evidence unrealistic. cannot accept the witness could remember the detail of location and speed that he gave in some of his evidence. can accept the testimony he was looking “about” ninety degrees to his right when he observed the vehicle in the parking lot. [33] Gordon Jewers is twenty-nine year old person who was called to the stand by counsel for the defendants. He was asked if he recalled the motor vehicle accident which is the subject of these proceedings and he replied “I recall it mind you it has been long time.” Mr. Jewers said he saw white car, which he later identified as police vehicle, pull out and turn towards Dartmouth and he observed the white car “get hit.” He stopped and “tried to assist” the police officer. He identified the other vehicle involved in the accident as Honda Accord. In his examination-in-chief he was asked what he observed about the Honda. He replied as follow: “After the accident asked if they could put four way flashers on. wasn’t sure if the car had lights on or not part of me thinks the car didn’t have lights on but at the same time from the direction was coming from really couldn’t observe one hundred percent if the car had lights on or if it was going too fast.” He was asked if the Honda’s lights were on after the accident and he replied in the negative. [34] At the beginning of his evidence on examination-in-chief Mr. Jewers volunteered that he was unemployed but on Social Assistance for “mental disorder.” This is relevant because the plaintiffs’ counsel on cross-examination asked if motor vehicle accident in 2001 caused memory problems for him. He answered, “I don’t think so but cannot remember.” [35] He confirmed on cross-examination that he could not say one hundred percent if the lights on the Honda were on or off. He was asked whether he saw the headlights illuminated or not illuminated and he said he reviewed his statement to the police and went on to state: “I did see flashing on the side now that think about it did see flashing on the police car but thought that was when it was coming into the intersection.” [36] can find no facts based on the evidence of Mr. Jewers. [37] Constable Fredy Michael Zildjan was called to the stand by counsel for the defendants. He was advanced to give opinion evidence on his examination of lamps on the Hawes vehicle. [38] Constable Zildjan received his early education outside of Canada to the same extent as grade 12 education in Canada. have examined his curriculum vitae which is attached to his report filed as Exhibit 10. He took night courses at the University of New Brunswick but they were not courses for accident investigation. In 1999 he took the basic recruit training for new officers of the Royal Canadian Mounted Police at Regina, Saskatchewan. [39] The curriculum vitae indicates Constable Zildjan took courses in the RCMP concerning accident investigation. The names of the courses and the times the witness attended are as follows: 1. Traffic Accident Investigation Level II from September 25th, 1994 to September 29th, 1994 in Debert, N.S. 2. Advance collision Analyst Level III from September 9th, 1997 to September 26th, 1997 at Canadian Police College, Ottawa, Ontario. 3. Collision Reconstruction Level IV from October 25th, 1998 to November 13th, 1998 at Canadian Police College, Ottawa, Ontario. [40] With respect to these three courses there is one subject in the Level III course entitled “tires and lamp examination.” There were other courses set out in the curriculum vitae but it was my impression lamp examination was an area quite distinct from the other subjects in the courses Constable Zildjan attended. [41] The witness was asked the amount of time that was occupied on lamp examination in the course. He replied possibly one-half day and admitted it could have been less than three hours and could not recall if that time included the tire examinations. He took the course eight years ago and has not testified on the subject until called upon in this proceeding. [42] To take the Level III course it was not necessary to take any preliminary courses. He was not required to work under senior analyst. He performed no reading or study on written material on lamp examination except the document entitled The Traffic-Accident Investigation Manual which was filed as Exhibit 11. He said all he needed to read was that which was in the manual which was filed as an exhibit. [43] In R. v. Mohan 1994 CanLII 80 (SCC), [1994] S.C.R. Justice Sopinka reviewed the rules on the admissibility of expert evidence setting out as factors relevance, necessity in assisting the trier of fact, absence of any exclusionary rule and properly qualified expert. With respect to the fourth requirement, that of qualifications, Sopinka J. at page 25 said: “....the evidence must be given by witness who is shown to have acquired special or peculiar knowledge through study or experience in respect of the matters on which he or she undertakes to testify.” [44] In Sopinka and Lederman, The Law of Evidence in Civil Cases (1974 ed.) at page 309 the authors say: “An expert is usually called for two reasons. He provides basic information to the court necessary for its understanding of the scientific or technical issues involved in the case. In addition, because the court alone is incapable of drawing the necessary inferences from the technical facts presented, an expert is allowed to state his opinion and conclusions. His usefulness in this respect is circumscribed by the limits of his own knowledge. Before the court will receive his testimony on matters of substance, it must be demonstrated that the witness possesses sufficient background in the area so as to be able to appreciably assist the court. The test of expertness so far as the law of evidence is concerned is still in the field in which it is sought to have the witness’ opinion.” [45] Constable Zildjan has preformed minimal study on lamp examination and has had no experience in examination of lamps. It is not sufficient to submit that he has had experience in various subjects of collision analysis because lamp examination is quite distinct from the other subjects referred to in the curriculum vitae. [46] When counsel for the plaintiffs, Ms. Mitchell, moved for finding the that witness was not qualified to express opinions on the operation or non-operation of the lamps of the plaintiff’s motor vehicle reserved on the motion. needed to hear further evidence from the witness to determine if he was qualified to express his opinion. I permitted further evidence from the witness but I can now state there was not presented evidence which establishes Constable Zildjan was qualified to express the opinion he gave in his testimony. [47] When I consider the evidence of the lay witnesses and the evidence of Constable Zildjan, if it had been admissible, I find that up to the time of the motor vehicle collision the headlights were in operation on the plaintiff Hawes’ motor vehicle. make this finding for the following reasons: 1. Krista Gallant did not see the Hawes motor vehicle before the accident and did not see it until after she was admitted to the lounge, sought help and walked to the police vehicle. 2. Ms. Gallant remained with the defendant Yorston who was in pain. She admitted she was focussed on the police officer. She saw people around the other car and pieces of material in front of that car. 3. Ms. Gallant said she did not proceed toward the Hawes vehicle “right away.” She said there was lapse of time between one-half hour and forty-five minutes before she ventured forth. 4. As stated cannot determine how close she came to the Hawes vehicle or the extent of attention she paid to it. Twice she said she went “by there” when asked if she went to the Hawes vehicle. 5. Both plaintiffs stated the lights of the plaintiffs’ motor vehicle were on during the trip to the accident scene. accept Ms. Hawes’ evidence on this point. 6. Robert Leckie passed the Hawes vehicle and he remembers seeing the headlights in operation. He commented it was “pretty dark” at one stretch of the highway. 7. Donald Laidlow did not know the plaintiffs. He gave his evidence in forthright manner and accept his evidence. He confirmed Mr. Leckie’s evidence that the road was pretty dark in particular spot. He was behind the Hawes vehicle short distance and could not directly look at the headlights but said, “I would have noticed if the lights were not on.” 8. In my view one could draw the inference that Ms. Hawes would be aware, particularly at the dark places on the highway, if the headlights were not in operation. 9. Nothing can be drawn from the fact that the defendant Yorston did not notice the plaintiff Hawes’ motor vehicle. He did not notice the Laidlaw’s motor vehicle which was fifty feet behind the Hawes’ motor vehicle. [48] The evidence given by Constable Zildjan convinced me he was not qualified to express an opinion. Constable Zildjan attended on the two vehicles involved in the accident on November 22, 1998. The vehicles were in towing compound. He said visual observation of the bulbs which he removed from the Hawes’ motor vehicle showed no signs of “hot shock”. [49] On the following day, at the request of Corporal Ferguson, he attended at the R.C.M.P. detachment and received sealed beam headlight which he took to service station. mechanic broke open the sealed lamp and Constable Zildjan checked the bulb and he indicated it showed no sign of “hot shock”. Except for two side marker lamps the other lamps showed no signs of “hot shock”. [50] The witness concluded the two small bulbs removed from the side markers were burned out. He said in his report the smaller bulbs showed more darkening than the larger ones. In finding the lights of the Hawes’ vehicle were not in working condition prior to impact the report stated: In order for lamp to produce ‘white heat’ also known as ‘light’, the tungsten filament reaches approximately 2200 degrees Celsius. At that point the filament is extremely flexible and ready to stretch, break or distort as result of impact. The filaments examined were all in near perfect condition. It’s my opinion that based on the appearance of one of the filaments in the dual filament bulb, this lamp only shows signs of an older filament typical of ‘age sag’ and not ‘hot shock’. [51] The witness indicated in his evidence that he relied almost completely on the document filed as Exhibit 11 which was entitled the Traffic Accident Investigation Manual. It was my understanding from his evidence that this was the only document he referred to in order to reach his opinion and yet he was referred by Ms. Mitchell to number of important sections of the manual in cross-examination and it was clear to me he didn’t follow some of the directions and recommendations in the manual. [52] In the manual at Page 23-7 burnout is discussed in the following words: Burnout occurs when tungsten leaving the filament by evaporation produces pitting to such an extent that the filament is thinner and weaker at certain places. These narrower spots have greater electrical resistance and current through the filament makes them hotter. The increased heat accentuates the loss of material and still further increases heating at these weakened points. When the filament temperature at the narrowest point reaches the melting point of tungsten, the filament parts at that point. An electric arc forms across the gap further increasing the heat and loss of material on either side of the gap. The arc flares up brightly for an instant until the gap widens the mouth to interrupt the current flow. Then the lamp is burned out. [53] The conclusion reached by the witness speaks of filaments which were in “near perfect condition” which would seem not to include filaments which were thinner and weaker as expressed in the definition of burnout in the manual. [54] The manual contained number of cautions concerning the arrival at conclusion that the lamps were not in operation. On cross-examination Constable Zildjan was referred to number of statements from the manual. At page 23-18 the following was set out: Absence of hot shock does not mean that the lamp was off; the shock may not have been great enough to stretch the filament. [55] The witness says he agreed with that statement. [56] Again at Page 23-18 the following is set out: Severity of impact (sudden change in motion) that lamp receives in collision depends not only on the speed at which the vehicle is moving when the crash occurs but also how close the lamp is to the contact damage area. [57] The witness agreed with that statement. [58] To suggest in the report that the Hawes vehicle “may have had an electrical problem” without examination of the electrical system of the vehicle does not permit me to make the finding there was such an electrical problem. [59] In conclusion, even if I found the witness qualified to express an opinion on the condition of the lamps prior to the accident, his evidence is not probative and lacks consistency to the point where I could not accept his opinion. It conflicts with the clear evidence advanced by persons at the scene prior to and at the time of impact. [60] find the headlights of the Hawes vehicle were in operation from the time the vehicle left the last pub attended by the plaintiffs up to the time of the motor vehicle accident. In my view the evidence establishes the defendant Yorston was distracted as he approached and entered the intersection to the point he did not see two vehicles which were in front of him. The defendant did not keep proper lookout to see that which was there to be seen. He was negligent and that negligence was the sole cause of the accident. Damages Cathy Hawes [61] Ms. Hawes was 27 years of age at the time of the motor vehicle accident. She had completed grade 12 and obtained secretarial certificate from the Nova Scotia Community College. At the time of the accident she worked as cheque distribution clerk at C.F.B. Halifax. [62] There was an agreement among counsel with respect to the special damages suffered by the plaintiff, Cathy Hawes, as result of the accident. These damages are as follows: Damage to motor vehicle (incl. Tax) $1380.00 Loss of sick leave pay 121.96 Loss of sick leave vacation pay 894.16 Total $2396.12 [63] On the claim for non-pecuniary general damages it was agreed by counsel the report of Dr. Cooper-Rosen dated June 13, 2000 be entered in evidence without the need to call the doctor as witness. Ms. Hawes stated in her testimony that she agreed with the contents of the report. The report stated she was seen by an associate of Dr. Cooper-Rosen on November 25, 1998 who stated Ms. Hawes “complained of sore chest in the area of her seat belt and pain in her knees, neck, mid and low back.” There were also complaints of right wrist and arm discomfort. It was said she had decreased forward flexion and rotation of the cervical spine. There was bruising on her knees and right hand. [64] Dr. Cooper-Rosen first saw Ms. Hawes on December 7, 1998. The plaintiff was taking physiotherapy three times week and continued that treatment for three months. Ms. Hawes lost one week from her employment and when she returned to work she could not do any lifting for period of time. [65] Dr. Cooper-Rosen stated that at the time of Ms. Hawes first visit to her on December 7, 1998 there were complaints of sore neck and pain in the thoracic area of her back and sharp pain in her knees. In her testimony Ms. Hawes stated she has muscle spasms in her upper back once or twice year which last two or three days. [66] Dr. Cooper-Rosen concluded her report of June 13, 2000 stating the following: “I saw Ms. Hawes regularly from January to August of 1999, as followed her through her pregnancy. She did complain of some low back pain on January 14, 1999, but other than that she progressed through normal pregnancy and delivery with no complaints related to the MVA. have also seen Ms. Hawes on numerous occasions since her delivery and she has not complained of any neck, back or knee pain.” Ms. Hawes has been patient of mine since 1998. She has been in good health and has never had any prior complaints of any neck, back, or knee pain; that is, she had no pre-existing difficulties in these areas. In summary, Ms. Hawes suffered soft tissue injury to her neck, mid back and lower back regions, blunt trauma to both knees and bruising of her right hand. These injuries were mild and limited Ms. Hawes activities for about three months. However, with physiotherapy and work hardening program, she has regained function in all these areas and seems to have completely recovered from her injuries. do not anticipate any long term problems as result of the motor vehicle accident.” [67] Ms. Hawes stated she has completely recovered except for the flare ups in the upper back. [68] There were complaints in her testimony of stress caused by the accident and she made reference to losing her motor vehicle and the charges she fought in provincial court. She believes she has developed depression from this accident but there was no medical evidence advanced with respect to this complaint. It is true number of police officers attended the accident scene and she was taken to the detachment and given breathalyser test. [69] In the course of argument, counsel for Ms. Hawes submitted that an appropriate figure for non-pecuniary general damages was $22,000. Counsel for the defendants put forth figure between $6000 and $8000. [70] Counsel for Ms. Hawes refers to the decision of the Court of Appeal of Nova Scotia, Smith v. Stubbert [1992] 117 N.S.R. (2) 118. The court established range of $18,000 to $40,000 for prolonged physical disability with substantial emotional impact. The evidence of Ms. Hawes’ disability does not fit the description given by Justice Chipman which was problem “persistently troubling but not totally disabling.” [71] My impression of Ms. Hawes is that she was attempting to be truthful in her evidence. She was modest in her complaints. She agreed with the comments of Dr. Cooper-Rosen that her injuries “were mild and limited” to period of three months. The only continuing problem is the infrequent muscle problem in the lower back. I would award $12,000 general damages with interest thereon at the rate of 2.5 percent thereon for five years. She should also recover percent interest on her special damages for five years. Damages Aulden Michael Pottie [72] Aulden Michael Pottie is 33 years of age and he finished his academic courses to the extent of grade ten. He was unemployed at the time of the motor vehicle accident. [73] Mr. Pottie has been interested in automotive body work and mechanic work since he was thirteen years of age. In 1988 he started course in auto body work. He remained on the course for almost two years. [74] Mr. Pottie said that following this accident he had pain in his neck, back, leg and shoulders. He attended the Dartmouth General Hospital the day after the accident. The record of the hospital indicates the patient complained of increasing neck stiffness, bilateral shoulder pain and bruising to leg and an arm. The hospital record stated Mr. Pottie “hit windshield with head”. [75] Mr. Pottie attended upon his family doctor (Dr. John D. Smith) on December lst, 1998. Dr. Smith’s report states he complained of stiffness at the back of his neck and upper back. It was noted the patient continued to work as car painter (which seems to conflict with Mr. Pottie’s evidence he was not working at the time of the accident) and stiffness seemed to bother him. Dr. Smith recommended that he see physiotherapist. Dr. Smith’s clinical notes stated Mr. Pottie struck the windshield with his face and the windshield broke. [76] Dr. Smith examined Mr. Pottie on March 9th, 1999 and the notes state “not missing any work. Problem with both shoulders.” There was surgery on both shoulders in 2001. The reports of Dr. LeGay, the operating surgeon, state Mr. Pottie had tendinitis of both shoulders. By letter dated January 24th, 2002 from Dr. LeGay to Dr. Smith there was reference with respect to the left shoulder with continual soreness which was expected but he had good range of motion, minimal crepitus and good strength. The operation on the right shoulder took place three months before the operation on the left shoulder. The patient had full range of motion in the right shoulder “with minimal tenderness.” [77] By March of 2002 Mr. Pottie had full range of motion in both shoulders with minimal crepitus. The medical documents in Exhibit speak of pain in the neck and shoulders. With physiotherapy the neck improved. Mr. Pottie testified that after the operations on the shoulders in 2001 the problems with the shoulders improved “a lot” and he estimated an improvement of 80 to 85 percent. Before the surgery he could not lift his arms over 90 degrees and had trouble sleeping. He said his shoulders ache on occasion at this time. [78] Mr. Pottie testified that prior to the accident he worked almost full time in auto body shops. During off hours he worked painting vehicles and he described few of these jobs including work on 1971 Chevelle owned by Bruce Riley. He did special art work on vehicles and stated job may take twenty hours or as much as one hundred to two hundred hours. He mentioned the tools he used and the weight of the tools and the fact his problems arising from the accident render it difficult to use some of the tools. [79] Mr. Pottie testified his off hours work on motor vehicles and motorcycles included painting to the point it was special art work on the vehicles. few of these jobs were referred to by Mr. Pottie and pictures of several vehicles were made exhibits. The witness said that more jobs were done for which pictures were not available. He said he earned between $25,000 and $30,000 year conducting this off hours work. [80] Income tax returns were entered in evidence and indicated declared income of Mr. Pottie as follows: Year Earnings E.I. Benefits 1991 $4500.00 1992 $5407.00 $1785.00 1993 787.00 $2261.00 1994 $9097.00 1995 $8885.00 $8372.00 1996 $4177.00 1997 $24,784.00 1998 $3276.00 $11,904.00 1999 $19,427.00 $2807.00 2000 $1,637.00 $3546.00 2001 $0 2002 $38,556.00 2003 $41,542.00 2004 $36,480.00 $4543.00 [81] From these records Mr. Pottie only declared earnings of $3276.00 for the year 1998 with the accident occurring near the end of that year. He received $11,904.00 in unemployment benefits during that year. He started work at the Dockyard on March 19th, 1999 and obtained full time job at the Dockyard in January 2002 and earns approximately $44,000 each year. This work does not exacerbate his shoulder pain. [82] Mr. Pottie did not declare to Revenue Canada income earned on the work performed painting vehicles. He said he did not know how to do that. This failure is not before me. failure to set out income in income tax returns is not bar against claim for loss of income. (See Hachey v. Dakin, Kempt and Canadian Provincial Insurance Co. [1983] 57 N.S.R. (2d) 441 (T.D.) and Parsons v. Packer 1997 CanLII 3262 (NS CA), [1997] 160 N.S.R. (2d) 321 at 336 (C.A.) do, however, find incredible his reason for not reporting full income. The absence of any evidence from customers or production of documents to support additional income requires me to find there was no proof of substantial loss of income. [83] refer to Bush v. Air Canada 1992 CanLII 2573 (NS CA), [1992] 109 N.S.R. (2d) 90 at 96: Loss of earnings incurred down to the date of trial are special damages which must be pleaded and proved. In some cases, this is very simple but in case such as this, the circumstances are such that it is not so easy. In Paulse v. Neville, et al (1997), 12 Nfld. P.E.I.R. 223 Gushue, J.A. speaking for the Newfoundland Court of Appeal said at p. 227: There is not much in the way of authorities available to indicate the particularity with which special damages are to be proved, but this is understandable because it obviously will vary with different types of cases and the availability of evidence. In my view, however, correct interpretation of the strict proof required in the assessment of spcial damages is that they must be proved to as great an extent, or fully, as possible in the circumstances of particular case. As set out in Halsbury Laws of England 3rd Volume II, P. 218: “In contrast to general damages, special damages must be claimed specifically and proved strictly.” [84] Dr. John Smith was Mr. Pottie’s family physician. He testified and his clinical notes were entered into evidence. There is reference in the notes, bearing the date March 30th, 1995, to “pain in both shoulders” and the fact the patient could not lift his arm above his shoulder. Dr. Smith sent Mr. Pottie to the hospital for x-rays of his shoulder. Mr. Pottie attended at the hospital but left when substantial time passed without his name being called. Mr. Pottie did not see Dr. Smith for the period from March 30th, 1995 to December lst, 1998. [85] It is my view that based on the evidence before me, including that of Mr. Pottie, Dr. Smith and Dr. LeGay and the notes and reports of the doctors, that if the accident did not cause the plaintiff’s shoulder complaints it certainly aggravated difficulties in that area and rendered greater discomfort in the shoulders. Dr. LeGay indicated it was an important factor Mr. Pottie performed work after the 1995 complaint. He earned $24,784.00 in 1997. [86] Dr. Smith referred Mr. Pottie to Dr. Venugopal and in the referral letter dated March 10th, 1999 he advised the patient had bilateral shoulder pain and that he was to see Dr. Venugopal in 1995 but that he left the doctor’s office before he could be seen. Dr. Smith stated in the letter that Mr. Pottie’s “shoulders seem to be relatively fine until recent motor vehicle accident...” Undoubtedly, Dr. Smith based that comment on that which was told to him by Mr. Pottie but the statement suggests aggravation of the shoulder problem did take place. Furthermore, found Mr. Pottie credible when he testified as to the nature of his injuries referring to 80 to 85 percent recovery. As indicated he impressed me in this portion of his evidence despite my finding he was less credible in his evidence on lost income. [87] Dr. Venugopal saw Mr. Pottie on April 14th, 1999 and in his letter to Dr. Smith that same date stated: “He has had shoulder problems for quite awhile. About two years ago he started having shoulder problems, but this sort of settled down. About four months ago he was involved in motor vehicle accident as front seat passenger without seat belt on. They t-boned another car, and he put his arms up to protect himself. Basically he smashed his face against the windshield and cracked it. He also took some force on his hand and arms. He has been having shoulder problems since then. He has an aching pain and difficulty with abduction especially above 90 degrees. Passively he can move it through full range of motion, but when he tries to move it himself he has lot of pain and discomfort, etc.” [88] The plaintiff’s symptoms continued and he was sent to Dr. LeGay, an orthopaedic surgeon, who performed the two operations on the shoulders in 2001. With respect to Mr. Pottie’s complaints of pain in May 1995 Dr. LeGay said he did not believe there was ongoing chronic pain before the accident. [89] On the issue of failure to wear the seat belt Dr. LeGay could not be certain this failure may have contributed to his injuries. [90] The defendants retained Dr. Michael Gross, an orthopaedic surgeon, who allowed that the accident may have “exacerbated pre-existing changes in his shoulders to minor degree”. More fully the opinion of Dr. Gross is set forth in the last two paragraphs of his report dated May 19th, 2003 which states: think that Mr. Pottie’s lack of wearing seatbelt undoubtedly contributed to him taking most of the injuries to his head and neck. There is no real explanation of how he injured his shoulders in the motor vehicle accident but it is possible that he exacerbated pre-existing changes in his shoulders to minor degree. It is more likely that his period of deconditioning following the motor vehicle accident resulted in increased play in the rotator cuff and Doctor LeGay does make note of this in his documentation. He stresses the importance of getting full return of strength of the rotator cuff to control the shoulders. If Mr. Pottie had been wearing his seatbelt, it is very unlikely that he would have hit his head and injured his neck at all. think he would have avoided any injury to his shoulder because the seatbelt would have prevented him from going forward and would prevent the shoulders from impacting with any part of the front of the car. Dr. Gross is expressing the view that Mr. Pottie would have avoided the injury to his shoulders if he had worn his seat belt. [91] Dr. LeGay had extensive connection to the medical problems of Mr. Pottie and accept his opinion that the patient did not have chronic pain to the shoulders before the accident and find that Mr. Pottie’s difficulties with respect to the injuries be recounted including the shoulder problems and the surgery required to the shoulders was caused by the accident. [92] find Mr. Pottie suffered damages to his neck and shoulders as result of the motor vehicle accident. He had considerable pain and discomfort to his shoulders and underwent two operations which would have been stressful. He has almost completely recovered from these injuries. With respect do not consider this is case which warrants the size of damages sought by counsel for Mr. Pottie and believe that $25,000.00 would be proper sum for non-pecuniary damages. [93] On the issue of pecuniary damages for loss of income, as expressed, do not find the plaintiff has proved that he has suffered substantial loss of income. The accident occurred in November 1998 and the plaintiff, during that calendar year, only earned declared income of $3276.00 and collected Employment Insurance Benefits of $11,904.00. In the absence of evidence confirming the sum Mr. Pottie stated he lost by way of income and am not prepared to find the defendants should pay the sums referred to by Mr. Pottie. accept there was evidence of loss of earnings but will not award more than $12,000 for that loss. [94] Should the loss occasioned by the accident in the amount of $37,000.00 be reduced by reason of the failure to wear seat belt? In answering this question was greatly assisted by the judgment in Fowler v. Schneider National Carriers Ltd. 2001 NSCA 55 (CanLII), [2001] 193 N.S.R. (2d) 206. Freeman, J.A. referred to case before the Supreme Court of Canada where Cory, J. referred to and approved the words of Lord Denning in Froom v. Butcher [1975] All E.R. 520 (Eng. L. A.). Justice Freeman stated at paragraphs 41 and 42: In case from British Columbia involving responsibility for making child passenger wear seat belt, Galaske v. O’Donnell, 1994 CanLII 128 (SCC), [1994] S.C.R. 670 (S.C.C.), Cory, J. writing for the majority, quoted Lord Denning’s reasons and said they were “as sensible and compelling in 1994 as they were in 1975, and should have been in 1985.” Lord Denning discussed apportionment of responsibility as follows: Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was prime cause of the whole of the damage. But insofar as the damage might have been avoided or lessened by wearing seat belt, the injured person must bear some share. But how much should this be? Is it proper to enquire whether the driver was grossly negligent or only slightly negligent? Or whether the failure to wear seat belt was entirely inexcusable or almost forgivable? If such an enquiry could easily be undertaken, it might be as well do it. In Davies v. Swan Motor Co ([1949] All E. R. at 632) we said that consideration should be given not only to the causative potency of particular factor, but also its blameworthiness. But we live in practical world. In most of these cases the liability of the driver is admitted; the failure to wear seat belt is admitted; the only question is: what damages should be payable? The question should not be prolonged by an expensive enquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess share of responsibility which will be just and equitable in the great majority of cases. Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if seat belt had been worn. In such cases the damages should not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if seat belt had been worn. In such cases would suggest that the damages should be reduced by 25 per cent. But often enough the evidence will only show that the failure made considerable difference. Some injuries to the head, for instance, would have been good deal less severe if seat belt had been worn, but there would still have been some injury to the head. In such case would suggest that the damages attributable to the failure to wear seat belt should be reduced by 15 per cent. .. In the present case the injuries to the head and chest would have been prevented by the wearing of seat belt and the damages on that account might be reduced by 25 per cent. The finger would have been broken anyway and the damages for it not reduced at all. Overall the judge suggested 20 per cent and Mr. Froom made no objection to it. So would not interfere. (Emphasis added) [95] It is probable that the injuries to Mr. Pottie’s shoulders would not have happened if he was wearing seat belt. I would reduce damages by 20 per cent. [96] The plaintiff, Cathy Hawes, shall recover from the defendants special damages in the amount of $2396.12 with 5% interest on that sum annually for period of five years. She should also recover from the defendants general non-pecuniary damages of $12,000.00 with prejudgment interest thereon at the rate of 2.5% annually in accordance with the decision of the Nova Scotia Court of Appeal in Bush v. Air Canada (supra) for a period of five years which I find was a reasonable time to bring the matter to trial. [97] The plaintiff, Aulden Pottie, shall recover from the defendants $20,000.00 representing 80% of the non-pecuniary award of $25,000.00 and prejudgment interest thereon at the rate of 2.5% annually for five years. [98] Mr. Pottie shall also recover from the defendants loss of earning capacity of $9600.00 representing 80% of the $12,000.00 previously assessed. There will be no prejudgment interest on the award of $10,000.00. [99] The plaintiff, Cathy Hawes, will recover her costs from the defendants. The plaintiff, Aulden Pottie, will recover 80% of his costs from the defendants. The defendants will recover 20% of their costs in one bill from the plaintiff, Aulden Pottie. [100] will accept written submissions on the amount of costs from counsel. John M. Davison Justice Supreme Court of Nova Scotia

The two plaintiffs were injured when the defendant police officer made a left hand turn in front of their motor vehicle at night. Although the plaintiff driver was proceeding through a green light, the defendant alleged that her vehicle's headlights were not in operation. The driver suffered soft tissue injuries to her neck and mid and lower back, blunt trauma to both knees and bruising of the right hand. She underwent physiotherapy for three months and made a complete recovery within two years except for flare-ups in the upper back. The second plaintiff suffered neck stiffness, bilateral shoulder pain and bruising to his arm and leg. He underwent successful surgery for tendonitis in both shoulders and his neck improved with physiotherapy. General damages awarded to the plaintiff driver in the amount of $12,000; general damages awarded to the second plaintiff in the amount of $25,000 (reduced by 25% due to that plaintiff's failure to wear a seat belt). The court found that even if the second plaintiff's tendonitis was not caused by the accident, it was definitely aggravated by it. The headlights were in operation on the plaintiff's vehicle at the time of the collision; evidence was not presented which established that the defendant's expert was qualified to express the opinion he gave in his testimony as to the state of the headlights and even if he was qualified to express an opinion on the condition of the lights prior to the accident, his evidence was not probative and lacked consistency; it conflicted with the clear evidence advanced by persons at the scene prior to and at the time of the impact.

d_2006nssc26.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 348 Date: 2013 09 24 Docket: Q. B. No. 1206 of 2012 Judicial Centre: REGINA BETWEEN: THE CROWN HAND PUB LTD. and BANK OF AMERICA CORPORATION, BMO FINANCIAL GROUP, BANK OF MONTREAL, BANK OF NOVA SCOTIA, CANADIAN IMPERIAL BANK OF COMMERCE, CAPITAL ONE FINANCIAL CORPORATION, CITIGROUP INC., FEDERATION DES CAISSES DESJARDINS DU QUEBEC, MASTERCARD INTERNATIONAL INCORPORATED, NATIONAL BANK OF CANADA INC., ROYAL BANK OF CANADA, TORONTO-DOMINION BANK, and VISA CANADA CORPORATION DEFENDANTS Docket: Q. B. No. 133 of 2013 Judicial Centre: REGINA BETWEEN: HELLO BABY EQUIPMENT INC. and BOFA CANADA BANK, BANK OF MONTREAL BANK OF NOVA SCOTIA, CANADIAN IMPERIAL BANK OF COMMERCE, CAPITAL ONE BANK (CANADA BRANCH), CITIGROUP INC., FEDERATION DES CAISSES DESJARDINS DU QUEBEC, MASTERCARD INTERNATIONAL INCORPORATED, NATIONAL BANK OF CANADA INC., ROYAL BANK OF CANADA, TORONTO-DOMINION BANK and VISA CANADA CORPORATION Counsel: Reidar Mogerman and Jennifer Winstanley for the plaintiff Michael Eizenga and Robert Staley for the Bank of America Corporation Katherine L. Kay for the Bank of Montreal (agent), Bank of Nova Scotia (agent) and Canadian Imperial Bank of Commerce Claire Hunter and Eileen Patel(by telephone) for Capital One Michael Adlem for Citigroup Inc. Chantal Chatelain and Amanda Quayle for Federation des caisses Desjardins du Quebec Jeffrey Simpson for Mastercard Randy C. Sutton for National Bank of Canada Andrew Borrell for Royal Bank of Canada Alexandra Cocks for Toronto-Dominion Bank Robert Leurer and Robert Kwinter for Visa Canada FIAT BALL J. September 24, 2013 [1] This fiat deals with three applications two by the plaintiff The Crown Hand Pub Ltd., the other by the plaintiff Hello Baby Equipment Inc. to cross-examine on affidavits filed in relation to applications to stay and/or for carriage of these class action proceedings. [2] Merchant Law Group (“MLG”) has commenced proposed class action against the defendants in Saskatchewan as Q.B.G. 1206 of 2012. The action, which names The Crown Hand Pub Ltd. as the proposed representative plaintiff, will be referred to as “the MLG Action”. [3] Two law firms (Branch McMaster LLP and Camp Fiorante Mathews Mogerman, both of Vancouver, B.C.) (the “Consortium”) have commenced proposed class action in Saskatchewan as Q.B.G. 133 of 2013. That action, which names Hello Baby Equipment Inc. as the proposed representative plaintiff, will be referred to as the “Consortium Action”. [4] The MLG Action and the Consortium Action raise the identical issues of fees paid by merchants in connection with Visa and Mastercard credit card transactions. There are five other credit card class actions advancing the same claims in other Canadian jurisdictions: one in Ontario (Bancroft Snell v. Visa Canada Corporation, OSCJ No. VC-11-426591 CP (Toronto) (the “Ontario Action”); one in British Columbia [Watson v. Bank of America Corporation, SCBC No. VLC-S-S-112003 (Vancouver) (the “BC Action”); one in Quebec [9085-4886 Quebec Inc. and Bakopanos v. Visa Canada Corporation, Superior Court of Quebec No. 500-06-00549-101 (Montreal) (the “Quebec Action”); and two in Alberta [Macaronis Hair Club and Laser Centre Inc., operating as Fuze Salon v. BofA Canada Bank, Alberta QB File No. 1203-18531 (Edmonton] (the “Consortium Alberta Action”) and [1023926 Alberta Ltd. v. Bank of America Corporation, Alberta Q.B. File No. 1203-10620 (Edmonton) (the “MLG Alberta Action”)]. [5] On April 4, 2013, the Consortium Alberta Action and the MLG Alberta Action were conditionally stayed by the Alberta Court of Queen’s Bench pending the decision of the Supreme Court of British Columbia in relation to an application for certification of the BC Action. The certification application in the BC Action was heard between April 22, 2013 and May 2, 2013 by Chief Justice Bauman and the decision is currently under reserve. [6] By application filed January 4, 2013 and amended June 20, 2013, MLG applied for certification of the MLG Action. On April 12, 2013, the Consortium applied for orders granting them carriage of the proceedings in Saskatchewan and staying the MLG Action. Filed in support of the Consortium application are affidavits sworn by: i. Luciana Brasil, lawyer representing the plaintiff in the Consortium Action; ii. Jonathan Bancroft-Snell, proposed representative plaintiff in parallel class action brought by the Consortium against the same defendants in Ontario; and iii. Amy Habicht, the principal of Hello Baby Equipment Inc. [7] On July 12, 2013, the defendants applied for an order staying the MLG Action and all similar actions pending the decision of Chief Justice Bauman of the Supreme Court of British Columbia on the application for certification of the BC Action. In support of their application for stay, the defendants have filed the affidavit of Amy K. Gaskin, the head of the defendant Visa Canada Corporation’s legal department. APPLICATIONS TO CROSS-EXAMINE ON AFFIDAVITS [8] MLG brings two applications. The first is for leave to cross-examine each of Luciana Brasil, Jonathan Bancroft-Snell and Amy Habicht on their affidavits. The second is for leave to cross-examine Amy K. Gaskin on her affidavit. The Consortium application, filed after the two MLG applications, is for leave to cross-examine Steve Patrick, the owner of The Crown Hand Pub Ltd., on an affidavit sworn June 18, 2013. Mr. Patrick’s affidavit was filed by MLG in opposition to the Consortium’s application for carriage. [9] Rule 6-13 of The Queen’s Bench Rules provides: 6‑13(1) On any application or petition, evidence may be given by affidavit, but the Court may, on the application of either party, order the attendance for cross‑examination of the person making the affidavit. (2) The party applying for any cross‑examination pursuant to subrule (1) shall bear the costs of the cross‑examination. [10] Leave to cross-examine on an affidavit filed in support of an interlocutory application is discretionary matter. The applicant must demonstrate that cross-examination will assist in resolving the issue before the court and that it will not result in an injustice. Leave will generally be permitted where there is contradictory evidence or where there is sincere and legitimate need for clarification of information that is solely within the knowledge of the affiant (Canada Safeway Ltd. v. Saskatchewan (Human Rights Commission), (1993) 1993 CanLII 9112 (SK QB), 108 Sask. R. 253, [1993] S.J. No. 122 (QL)). These general principles apply to cross-examination on all affidavits filed in support of interlocutory applications, including applications for certification under The Class Actions Act, S. S. 2001, c. C-12.01 (the “Act”). [11] In Hoffman v. Monsanto Canada Inc., 2003 SKQB 564 (CanLII), 242 Sask. R. 286, G.A. Smith J. (as she then was) noted that there are number of characteristics of applications for certification under the Act that weigh in favour of granting leave to cross-examine. The court noted that pursuant to s. of the Act, certification order is not determination of the merits of an action and, for that reason, cross-examination going solely to the merits of the plaintiff’s claim is not permissible. Even so, the court emphasized the importance of providing, on certification motion, proper evidentiary record for the resolution of the issues raised by the application, including clarification of ambiguous evidence, expanding or narrowing the scope of what is said in an affidavit, or exploring matters going to the credibility of the affiant. The fundamental questions are whether the proposed cross-examination will be relevant and of some assistance in the ultimate determination of the issues. [12] Although the court in Saskatchewan has been inclined to grant leave to cross-examine deponents on affidavits filed on certification applications to ensure that it is presented with an adequate evidentiary record, leave to cross-examine is not granted routinely or automatically. There have been number of decisions in which the court has decided that cross-examination will not be permitted. See, for example, Thorpe v. Honda Canada Inc., 2010 SKQB 136 (CanLII), 352 Sask. R. 89; Wall Estate v. Glaxosmithkline, 2010 SKQB 351 (CanLII), 367 Sask. R. 21; Alves v. MyTravel Canada Holidays Inc., 2009 SKQB 517 (CanLII), 348 Sask. R. 1. [13] Applications for leave to cross-examine on affidavits must take into account the purpose for which the affidavits are filed and the effect of resulting order. Here, the affidavits have not been filed in relation to an application for certification. The affidavits of Luciana Brasil, Jonathan Bancroft-Snell and Amy Habicht have been filed in support of the application for orders staying the MLG Action and granting the Consortium carriage of the claims against the defendants. The affidavit of Amy K. Gaskin has been filed in support of the defendants’ application for an order temporarily staying the MLG Action. The affidavit of Steve Patrick has been filed in opposition to the Consortium’s application for stay and carriage. [14] By and large, the affidavits filed by the Consortium in respect of its application for carriage and stay orders, and by the defendants in support of their application for stay, deal with the progress of the credit card class action litigation in this and other jurisdictions. The information is uncontroverted and a matter of public record. Mr. Merchant was unable to explain how and why it might assist the court to have him cross-examine on what is not in dispute. [15] The affidavits filed by the Consortium also set out its intended approach to managing credit card class action claims in the various jurisdictions across Canada. In particular, they indicate that the Consortium intends to pursue its claim initially in British Columbia (a no-cost jurisdiction) followed by its claim in Ontario (an opt-out jurisdiction). While Mr. Merchant speculates that this is “suspicious” and indicates “secret agreement”, there is no evidence supporting that view. Moreover, it is contradicted by his own beliefs that the defendants intend to fully defend the claims in every jurisdiction. [16] The applications by MLG set out number of matters the proposed cross-examinations would explore. The overall thrust would be to engage Amy Habicht, the principal of Hello Baby Equipment Inc., Jonathan Bancroft-Snell, the operator of an art gallery acting as representative plaintiff in the Ontario Action, one of the Consortium lawyers, Luciana Brasil, in examinations for discovery respecting their solicitor client communications or their opinions regarding purely legal issues such as the implications of recent Competition Tribunal Decision and the reasons for interlocutory decisions in other jurisdictions. Even if the affidavits raised these issues, they would not be the subject of useful cross-examination. [17] The affidavit of Amy Habicht, the principal of Hello Baby Equipment Inc., asserts her support for the Consortium as her counsel. Similarly, the affidavit of Steve Patrick, the owner of The Crown Hand Pub Ltd., asserts his support for MLG as class counsel. Both affidavits are based on what each of the affiants have been told by their respective counsel. In my view, cross-examination on what they have been told, and about their individual opinions related to the qualities of their respective counsel, would add nothing to the evidentiary record. [18] Finally, at least two of the affidavits (the affidavit of Luciana Brasil and the affidavit of Amy K. Gaskin) contain legal argument that does not belong in an affidavit, but in brief of law. It is unacceptable for legal counsel to present argument in the form of an affidavit, but it does not follow that by doing so, the affiant lawyer becomes obliged to open up his or her client files for review by third parties, nor examined for discovery with respect to their proposed legal strategies, nor required to debate the merits of future legal arguments by way of cross-examination. MLG has applied to strike portions of the affidavits, and that application will be heard on date to be set by the Local Registrar in consultation with the parties. [19] The arguments presented during the hearing of these applications dealt exclusively with the two applications by MLG to cross-examine on affidavits filed by the Consortium and the defendants. No submissions were made by any party in respect of the Consortium’s application to cross-examine Steve Patrick on his affidavit in opposition to those applications. However, it is apparent that if MLG’s applications to cross-examine the various affiants are dismissed, then the defendants’ application to cross-examine Mr. Patrick must also be dismissed. [20] In summary, the MLG applications for leave to cross-examine on the affidavits is dismissed for the following reasons; 1. I am not satisfied that MLG’s desire to question the deponents is based on a real and sincere need to clarify any issues relevant to the applications for which the affidavits have been filed. 2. The answers to questions arising from the sought-after cross-examinations would be of no assistance to the court’s inquiry into issues raised by the applications on which the affidavits have been filed. 3. Virtually all of the reasons cited by MLG to support the request to cross-examine the affiants focus, not on evidentiary issues, but on the relative merits of legal issues. [21] For the same reasons, the Consortium’s application to cross-examine Steve Patrick on his affidavit, sworn June 18, 2013, is dismissed. [22] There will be no order as the costs.

HELD: The Court dismissed the application. The information contained in the affidavits was uncontroverted and a matter of public record. MLG was unable to explain how cross-examination would assist the Court. As well, the application to cross-examine did not appear to rest on a real need to clarify any issues relevant to the application for which the affidavits had been filed and focused on the relative merits of legal issues rather than on evidentiary issues.

d_2013skqb348.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2015 SKQB 216 Date: 2015 07 14 Docket: QBG 815 of 2014 Judicial Centre: Regina BETWEEN: RURAL MUNICIPALITY OF EDENWOLD No. 158 and GREGORY GEORGE SCHMIDT Counsel: D. Neil Robertson, Q.C. for the applicant Mark F. Mulatz for the respondent DECISION PRITCHARD J. July 14, 2015 Background and Facts [1] On May 15, 2014 the Rural Municipality of Edenwold No. 158 [RM] was granted an order [Court Order] requiring the respondent, Gregory George Schmidt [Mr. Schmidt] to comply, within 60 days, with the order of the Development Officer of the RM dated February 3, 2014 [RM Order]. The RM Order was made pursuant to s. 242 of The Planning and Development Act, 2007, SS 2007, P-13.2 [Act]. It required Mr. Schmidt, as the owner of land located within the RM; namely, Parcel A, Plan GD1719, Ext (Surface Parcel 11576900) [Parcel A] to comply with RM Zoning Bylaw number 2010-17 [Zoning Bylaw]. In particular, it required Mr. Schmidt to desist from operating an equipment storage yard on Parcel and to restore Parcel “to the condition it was in immediately prior to undertaking the development”. [2] The court record shows that Mr. Schmidt was personally present in Chambers on May 15, 2014 when the Court Order was granted. Nevertheless, he took no significant steps to comply with the RM Order within the time stipulated therein. On August 19, 2014, the RM then applied for an order declaring Mr. Schmidt to be in contempt of court for his continued failure to comply with the RM Order as directed by the Court Order. [3] The contempt application was initially heard September 25, 2014. At some time prior, Mr. Schmidt engaged counsel and filed an affidavit in response to the application. In his affidavit, Mr. Schmidt acknowledges that he is not permitted to keep “junk cars and abandoned vehicles and similar materials” on Parcel A. He deposes that he has “taken steps to remove all junked and abandoned vehicles” from his property but then acknowledges that he continues to use his property as storage yard. In paragraphs 7, and of his affidavit sworn September 22, 2014 he states: 7. have taken steps to improve my property by removing signage, cutting grass, removing fences, and removing various vehicles and equipment. maintain that am permitted to use my property as storage yard, as permitted use. 8. have, therefore, not removed all of the equipment own from the property. continue to store rolling stock, trailers, heavy duty equipment, other various equipment, and trailer camper which maintain may store on the property. 9. am prepared to remove all offending equipment from the property if know what to remove. The Applicant may allege that only public utility storage yards are permitted in CR2 Country Residential zoned land. contest this allegation. [4] In paragraph 11 of his affidavit, Mr. Schmidt then states: 11. In the event the Court shall determine have not complied sufficiently, am prepared to continue to remove offending stored equipment. In such case, request be given time to do so. am contractor and have been extremely busy over the summer and into this fall. The land is extremely wet. may need another six (6) to eight (8) weeks to find location to store my equipment. [5] Mr. Schmidt did not appeal the RM Order nor did he appeal the Court Order. Given his continued assertion that he was entitled to maintain storage yard on Parcel A, he was advised by the court that these contempt proceedings were not the proper forum to deal with any dispute over allowable uses for Parcel A; that contempt proceedings were limited to the issue of whether there had been wilful breach of court order without reasonable excuse; and, that until an order has been set aside person can be found in contempt for failing to follow it regardless of their opinion as to its correctness. [See: MacMillan Bloedel Ltd. Simpson, (1994), 1994 CanLII 1731 (BC CA), 113 DLR (4th) 368 (BCCA) (aff’d 1995 CanLII 57 (SCC), [1995] SCR 725). See also Canada (Human Rights Commission) Canadian Liberty Net, 1998 CanLII 818 (SCC), [1998] SCR 626; British Columbia (Attorney General) Perry Ridge Water Users Assoc., 1998 CanLII 5132 (BCSC)]. [6] As Mr. Schmidt indicated willingness to “continue removing offending stored equipment” and given the amount of equipment still remaining on Parcel A, the contempt application was adjourned to October 3, 2014 to give Mr. Schmidt the opportunity to provide the court and the RM with written plan on how he intended to comply with the Court Order. Following the adjournment, Mr. Schmidt provided the requested plan. He estimated the cost of removal to be approximately $10,000.00 and stated that his compliance with the Orders could be achieved by December 15, 2014. [7] The RM conceded that it was preferable to give Mr. Schmidt additional time to comply with the Orders and did not strongly oppose Mr. Schmidt’s adjournment request to December 15, 2014. It was apparent that the RM did not relish the alternative prospect of removing the offending equipment and adding the cost thereof to the property taxes levied against Parcel A. [8] The contempt application was therefore adjourned to February 2, 2015, being the next closest date after December 15, 2014 that was available to the court. [9] On the adjourned date, Mr. Schmidt filed further affidavit to update the court on his efforts to comply with the Orders. He deposed that he, his family and employees had undertaken removal of materials from the lands on October 29, October 30 and on November 13 to November 17, 2014. He further deposed that the clean-up cost him approximately $4,000.00 in fuel costs and about $6,000.00 in salary. At paragraphs and of this affidavit, sworn February 2, 2015, he states: 7. My property now is on par with other acreages and properties in the Rural Municipality fronting Highway #1. There are some acreages which are substantially worse in appearance. 8. At the first application when the Order to Remedy was granted, firmly believed could store equipment and material on my land. It was only after the contempt application when secured counsel that learned my belief as to permitted use was incorrect. [10] Attached to Mr. Schmidt’s affidavit were numerous photographs of Parcel that he took on or about February 2, 2015 showing the then current state of the lands. The RM agreed that some equipment had been removed from Parcel between October 3, 2014 and February 2, 2015 but advised the court that it was still far from satisfied with the results. The RM also acknowledged that given the then existing snow cover, nothing further of significance could realistically be achieved by Mr. Schmidt until spring thaw and the drying out of the surface of the land. The matter was therefore once again adjourned; this time to May 11, 2015. [11] On the final adjourned date of May 11, 2015, the RM filed an affidavit with updated photographs of the state of Parcel that were taken on May 1, 2015 and on May 7, 2015. The RM acknowledged that the photographs showed that since February 2, 2015 Mr. Schmidt had made considerable progress in the removal of equipment from Parcel A. Nevertheless, it submitted that the photographs also clearly evidenced that the job was still far from complete. For his part, Mr. Schmidt did not seek any further adjournments. He simply maintained that given his own personal circumstances, he had done his best in attempting to remove offending material from Parcel A. He also submitted that he would continue in his efforts to comply with the Orders, but it would take time, particularly with respect to the track hoe. Mr Schmidt orally advised the court that the track hoe was located near pipeline running under Parcel and he did not know what approvals he would require from the holder of the pipeline easement before he could transport the heavy equipment across the pipeline. Given this concern, Mr. Schmidt was given leave to file further affidavit to advise the court if the pipeline on Parcel created any genuine impediment to removal of the track hoe. That affidavit, filed May 19, 2015, indicates that the owner of the pipeline requires four days’ notice of when Mr. Schmidt intends to remove the track hoe so they can be present while he does the work. Relief Requested [12] The RM asks the court to:1. Find Gregory George Schmidt in contempt of court;2. Impose appropriate penalties or sanctions on Mr. Schmidt;3. Authorize the RM to enter onto Parcel A to remove any remaining machinery, vehicles, equipment and other materials stored on the land contrary to the Zoning Bylaw; to arrange for disposal of those materials; and to add the costs of this removal and disposal to the taxes on the lands; and4. Make an order for solicitor/client costs in favour of the RM. [13] The law of contempt arises from the common law and the inherent jurisdiction of the court. In his scholarly paper, “The Inherent Jurisdiction of the Court”, (1970) 23 Curr Legal Probs 23, at 27-28, Master I.H. Jacob comments on how important contempt powers are to the proper functioning of the courts and maintaining the rule of law. He states: For the essential character of superior court of law necessarily involves that it should be invested with power to maintain its authority and to prevent its process being obstructed and abused. Such power is intrinsic in superior court; it is its very life-blood, its very essence, its immanent attribute. Without such power, the court would have form but would lack substance. The jurisdiction which is inherent in superior court of law is that which enables it to fulfil itself as court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in regular, orderly and effective manner. [14] Contempt of court proceedings in this province are rare. Instances of civil contempt are most often based on breach of the rules of court or of court order. The most typical case is when person bound by an order of court requiring them to do something or refrain from doing something, disobeys that order. Such action or inaction gives rise to private injury or wrong which is generally not criminal in nature even though the contemnor may ultimately be sanctioned by fine or even term of imprisonment. However, given the potential severity of punishment, the elements of civil contempt must be proven beyond reasonable doubt. [15] In Saskatchewan, The Queen’s Bench Rules set out the procedure for civil contempt of court proceedings. The relevant portions of Rule 11-26(3)(a)(i) state: Declaration of civil contempt (3) judge may declare person to be in civil contempt of Court if: (a) the person, without reasonable excuse: (i) does not comply with an order, other than an order to pay money, that has been served in accordance with the rules for service of commencement documents or of which the person has actual knowledge; Position of the RM [16] The RM seeks declaration of contempt together with sanctions against Mr. Schmidt, both of which it maintains are necessary to serve as deterrent and to vindicate the authority of the court. The RM acknowledges that Mr. Schmidt has made significant progress in complying with the Orders since the commencement of these contempt proceedings. However, it maintains that Mr. Schmidt has provided no reasonable excuse for his initial failure to comply with the Court Order or for his repeated failures to complete the purging of his contempt despite being given many opportunities to do so by the court. The RM notes that despite four adjournments of these proceedings between September 4, 2014 and May 11, 2015 significant amount of offending material still remains on Parcel A. Based on the pictures taken by the RM on May 7, 2015 and the facts in Mr. Schmidt’s supplementary affidavit sworn May 19, 2015, the equipment remaining includes small bobcat, broken down dump truck, two loaded tractor trailers, large tractor and an 80,000 pound inoperable track hoe that has sunk into the ground and will need to be lifted out and hauled away or cut up and removed in pieces. [17] Parcel is zoned country residential and storage of heavy equipment and related commercial vehicles on Parcel contravenes the Zoning Bylaw. The last set of pictures filed in these proceedings establishes that Mr. Schmidt’s breach of the Court Order continues and is more than de minimis. According to the RM, Mr. Schmidt’s continued failure to comply with the Court Order is made even more egregious by the fact that he has continuously been engaged in this unlawful use of Parcel since late 2009. According to the RM, the evidence establishes that its initial objective was to have Mr. Schmidt voluntarily cooperate and comply with the Zoning Bylaw. Only after it determined that this was not going to happen did it proceed with number of more formal methods of inducement. These ultimately resulted in the issuance of the RM Order directing compliance. When Mr. Schmidt still failed to comply with the Zoning Bylaw, the RM was then forced to initiate an application for the Court Order compelling him to comply. And ultimately, when even that did not propel Mr. Schmidt into action, the RM found itself in the position of incurring substantial legal fees and disbursements to initiate these contempt proceedings. In all, the entire process has extended beyond five years. [18] Given the length of time that Mr. Schmidt has been in non-compliance with the Zoning Bylaw, the RM suggests that in addition to the requested order authorizing it to complete the removal of the offending equipment, additional appropriate sanctions should include substantial fine as well as an order requiring Mr. Schmidt to pay the RM’s solicitor and client legal costs. Position of Mr. Schmidt [19] At the commencement of these proceedings, Mr. Schmidt took the position that since he honestly believed that the RM Order was wrong, he was not required to comply with it nor with any Court Order purporting to require such compliance. When faced with the reality that his view of the correctness of the RM Order and, by necessity, the Court Order, was not relevant to these proceedings, he ultimately became more serious about making efforts to remove the offending equipment and materials from his lands. And yet, despite the many adjournments that have given Mr. Schmidt generous additional time to comply, he has still not removed all of the offending equipment. In essence, he responds by maintaining that this whole matter has been nothing but huge financial drain on him and his family. He says that he simply has no place other than his home acreage to park his tractor trailers between jobs or to store equipment that he requires from time to time in his contracting business. [20] At no point in these proceedings has Mr. Schmidt maintained that he was not in contempt of the Court Order. He was clearly in contempt at the commencement of these proceedings and, despite some significant efforts towards compliance over these past eight months, he continues to remain in contempt of the Court Order. Given this reality, the only real issue in dispute is the appropriate penalty or sanction to be imposed by this court. [21] The Court Order that is the subject of these proceedings gave Mr. Schmidt period of 60 days to comply with the RM Order. The 60 day time period expired mid-May, 2014. The Notice of Application that initiated these proceedings was originally scheduled to be heard on September 4, 2014. The hearing was ultimately concluded on May 11, 2015. [22] It is not unusual for there to be genuine issue between the parties as to whether or not there has been substantial compliance with any given order. This is not such case. Mr. Schmidt has not claimed that he has substantially complied with the RM Order or the Court Order; only that he has, in effect, done as much as he can do at this point to comply. [23] The court has some sympathy for the situation that Mr. Schmidt has found himself in. Although there is no clear evidence on this point, it is likely that he did not know before he purchased Parcel that his intended use of the land was contrary to the Zoning Bylaw. The evidence establishes that Mr. Schmidt and his spouse acquired Parcel in late February 2009 and within six months of their acquisition, the RM was already advising them in writing of “concerns with storage issues” on the land. Unfortunately, Mr. Schmidt failed to take the concerns of the RM seriously. His lack of positive response to letter requests prompted the RM to more formal action. On August 30, 2010, he was advised that formal resolution has been passed by the RM on August 21, 2010 requiring him to remove the heavy equipment and related vehicles from Parcel by October 1, 2010. Mr. Schmidt failed to take any remedial steps in response to this resolution and the RM then requested him to attend the December 21, 2010 council meeting to provide his reasons for not complying with the Zoning Bylaw. There is no record of what, if anything, occurred at that meeting. There is also no record of dealings between the parties in 2011 or 2012. Correspondence shows that in July of 2013, Mr. Schmidt was in discussions with the RM regarding development permit applications for Parcel and another parcel of land. However, there is no evidence of what became of the proposed applications. On February 3, 2014 the RM Order central to these proceedings was ultimately made. [24] The history leading up to these proceedings establishes that this is not case of the RM having acted in high-handed manner either before or after the RM Order. The RM tried on its own for nearly five years to obtain compliance with its straightforward zoning requirements but received no cooperation from Mr. Schmidt. Since then, the court has met with slightly more success, but only by granting significant adjournments to give Mr. Schmidt additional time to continue in efforts to comply. [25] Mr. Schmidt claims that he has no other place to store his commercial vehicles or that he cannot afford to store them elsewhere. These practical issues were undoubtedly genuine concerns for Mr. Schmidt when he first became aware of the Zoning Bylaw. However, sympathy for his predicament ultimately fades when he fails to solve this problem with over five years to do so. Moreover, Mr. Schmidt’s stated concerns or impediments to compliance ring rather hollow when he fails to provide evidence of any efforts that he may have made to find alternate storage facilities or of any significant financial hardship that has prevented him from doing so. Without such evidence, and despite some sympathy for Mr. Schmidt’s plight, it is not possible to justify any further delay in the court ultimately enforcing its Order. [26] In the result, and pursuant to Queen’s Bench Rule 11-16(3), this court declares the respondent, Gregory George Schmidt to be in contempt of court for failure, without reasonable excuse, to comply with the terms of the order of Mr. Justice M.T. Megaw made in Chambers on May 15, 2014. In the event Mr. Schmidt remains in contempt of court following the expiration of 30 days after personal service of the order issued pursuant to this decision, the RM is hereby authorized to enter upon Parcel A and remove and dispose of the machinery, commercial vehicles, equipment and other items that remain stored thereon contrary to the Zoning Bylaw and thereafter dispose of those items. Punishment for Civil Contempt of Court [27] The applicable portions of Queen’s Bench Rule 11-27(1) state: Punishment for civil contempt of Court 11-27(1) Every person declared to be in civil contempt of Court is liable to any one or more of the following penalties or sanctions in the discretion of judge: (a) imprisonment until the person has purged the person’s contempt; [28] The RM did not vigorously urge imprisonment as an appropriate sanction in this case and am not prepared to consider it. However, the RM has urged this court to impose significant fine as well as solicitor/client costs. For his part, Mr. Schmidt asks for time to pay any fine that may be levied. [29] The court has been advised that up to but not including the May 11, 2015 court appearance, solicitor/client costs incurred by the RM in these proceedings total $13,370.00. This includes four court appearances and the preparation of two memoranda and several affidavits. The RM submits that it was compelled to make this contempt application both to enforce the law and to vindicate the authority of the court. It therefore maintains that solicitor/client costs should be awarded. In support of this submission the RM relies upon Goodtrack The Rural Municipality of Waverley No. 44), 2013 SKCA 137 (CanLII), 427 Sask 147 [Goodtrack]. In Goodtrack, the Saskatchewan Court of Appeal expounded upon the principles to be followed regarding solicitor/client costs that it had earlier set out at paragraph 118 of Siemens Bawolin, 2002 SKCA 84 (CanLII), 219 Sask 282 [Siemens]. In Siemens, the Court of Appeal stated: 118. These are the principles, relevant to this appeal, which take from my review of the above authorities: 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. [30] Referring back to the principles enumerated in Siemens, the Saskatchewan Court of Appeal in Goodtrack states at paragraphs 31 and 33: 31. …we conclude that Siemens v. Bawolin provides for solicitor-client costs in exceptional circumstances including but not restricted to situations where the conduct of the party against whom they are awarded is scandalous, outrageous or reprehensible. Viewing Siemens v. Bawolin in this manner allows trial judge to exercise judicial discretion in awarding costs, which the Queen’s Bench Rules and the relevant legislation contemplate. 33. …the Chambers judge erred in interpreting the Siemens case when she stated that “an award of solicitor-client costs is limited to rare and exceptional circumstances where the conduct of the party against whom costs are sought is scandalous, outrageous or reprehensible”. By limiting solicitor-client costs to circumstances where there is both exceptional circumstances and scandalous, outrageous or reprehensible conduct, the Chambers judge incorrectly fettered her discretion. [Emphasis in original] [31] Queen’s Bench Rule 11-1 speaks more generally about the court’s discretion respecting costs. Rule 11-1(1) states: 11-1(1) Subject to the express provisions of any enactment and notwithstanding any other rule, the Court has discretion respecting the costs of an incidental to proceeding or step in proceeding, and may make any direction or order respecting costs that it considers appropriate. [32] The portions of Rule 11-1(4) which are relevant to these proceedings state: 11-1(4) In exercising its discretion as to costs, the Court may consider: (a) the result of the proceeding; (c) the importance of the issues; (g) the conduct of any party that tended to shorten or to unnecessarily lengthen the proceeding; (h) party’s denial of or refusal to admit anything that should have been admitted; (l) any other matter it considers relevant. [33] In my view, there are number of factors that support the RM’s position that the exceptional circumstances of this case justify the awarding of solicitor and client costs. Clearly, the situation that the RM was in when it commenced these contempt proceedings was untenable. Not only had Mr. Schmidt steadfastly refused to comply with the RM Order, he had continued to do so even after the Court Order was granted directing him to comply with the RM Order. The Court Order was granted pursuant to s. 242(10) of the Act. Section 242(11) thereof states: (11) No person to whom an order is made pursuant to subsection (10) shall fail to comply with the order within the time set out in the order. [34] The statutory authority of the RM and the jurisdiction of this court were both wilfully ignored by Mr. Schmidt. In most instances, the mere commencement of contempt proceedings is sufficient to immediately induce compliance with Court Order, but not in this case. Although Mr. Schmidt’s conduct prior to the commencement of these proceedings on August 19, 2014 may not generally warrant an award of solicitor and client costs, his continued and ongoing unjustified failure to comply with the Zoning Bylaw since then certainly does. This has never been situation where there has been genuine issue or dispute between the parties. Mr. Schmidt has simply not liked how the Zoning Bylaw impacts his personal interests and he has therefore chosen not to comply with it. [35] The choices made by Mr. Schmidt have had significant financial implications for all ratepayers of the RM whose taxes have regrettably but necessarily been used to fund these contempt proceedings. Although courts do not relish applications of this kind, it might reasonably be said that the RM had public policy obligation to bring this matter forward and corresponding right not to be saddled with the costs of doing so. Moreover, s. 369 of The Municipalities Act, SS 2005, M-36.1 specifically authorizes that costs incurred by council in remedying contravention of bylaw be added to the tax roll of the affected lands s. 369(1)(c) states: 369(1) council may add the following amounts to the tax roll of parcel of land: (c) unpaid expenses and costs incurred by the municipality in remedying contravention of bylaw or enactment if the contravention occurred on all or part of the parcel; [36] Although s. 369(1)(c) does not specifically refer to solicitor/client costs of proceedings of this kind, it was properly instituted and clearly necessary to deal with contravention of the Zoning Bylaw. It is also the means by which the RM has obtained authority, if necessary, to remedy the contravention. [37] Given all of these considerations, I am satisfied that this is a situation that calls for complete or near complete “indemnification for costs reasonably incurred” by the RM, which are hereby set at $15,000.00. [38] Significant additional costs may be incurred by the RM and added to the tax rolls for Parcel A and became payable by Mr. Schmidt if he does not purge his contempt within the time allotted hereunder and before the RM moves to remove the offending equipment from Parcel A. Mr. Schmidt will also be responsible for his own legal fees. In all, Mr. Schmidt’s failure to comply with the Court Order could end up being an extremely expensive mistake for him. Contempt proceedings are not for punishment per se, but for upholding the rule of law and respect for court orders. As such, fine as requested by the RM will not be imposed, because the court is concerned that any additional financial sanction may be more akin to punishment and may cause severe hardship to Mr. Schmidt. [39] An order may therefore issue in the form of the draft filed on August 19, 2014 but with paragraph thereof deleted in its entirety and paragraph being amended by deleting the period from the end of the sentence and adding “which are set at $15,000.00.” J. J.L.G. PRITCHARD

Civil Procedure – ContemptCivil Procedure – Queen’s Bench Rule 11-16Municipal Law – Zoning Bylaw – Enforcement The applicant rural municipality was granted an order in May 2014 by a Queen’s Bench judge that directed the respondent to comply within 60 days with an order of the applicant’s development officer. That order had been made pursuant to s. 242 of The Planning and Development Act and required the respondent to comply with the zoning bylaw by desisting from operating an equipment storage yard on a parcel of land owned by him and to restore it to the condition it was in prior to his use of it. The respondent had purchased the land in 2009 and immediately began storing equipment and leaving junk cars and other materials on it. The applicant had tried to encourage the respondent’s voluntary cooperation with the bylaw but eventually issued the order. After the court granted the order, the respondent took no steps to comply with it and in August 2014, the applicant applied for an order declaring the respondent to be in contempt of court. The application was heard in September at which time the respondent submitted by affidavit that he had removed the old cars but believed that he was allowed to keep his equipment. He requested that he receive additional time. The respondent was given until December 2014 to comply with the order. At the hearing he deposed that he had spent a significant amount of time and money removing materials from the land and that he had found out from his counsel that his belief regarding the permitted use of the land was incorrect. Based on the appearance of the site, the applicant was not satisfied but agreed to adjourn the matter until May 2015 as nothing could be done during the winter. When the matter was reviewed in May, the respondent had removed more equipment but said that he was not able to move it all as he had no place to put the rest of it. The applicant requested that the court find the respondent in contempt and to impose appropriate penalties, authorize it to remove any remaining machinery and to add the costs of this removal and disposal to the taxes on the land and to make an order for solicitor-client costs in its favour. HELD: The respondent was found to be in contempt of court pursuant to Queen’s Bench rule 11-16(3) for his failure, without reasonable excuse, to comply with the terms of the May 2014 court order. The court authorized the applicant to remove and dispose of the equipment if the respondent had not done so within 30 days of the order issued. The court awarded solicitor-client costs to the applicant in the amount of $15,000 because of the respondent’s continued and unjustified failure to comply with the zoning bylaw. As the applicant might incur additional costs to remove the equipment, those costs would be added to the tax rolls of the property and become payable by the respondent if he had not purged his contempt within the allotted time.

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J. F.L.D. A.D. 1998 No. 391 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: YVETTE CYNTHIA ANDERSON and CHRISTOPHER ANDERSON RESPONDENT E. F. Anthony Merchant, Q.C. for the petitioner Linda A. Christensen for the respondent JUDGMENT PRITCHARD J. May 21, 1999 [1] The petitioner obtained an ex parte order under s. 8(1) of The Family Maintenance Act, 1997, S.S. 1997, c. F-6.2 (the “Act”) which:(a) restrains the Attorney General of Canada from releasing or paying any monies to the respondent or his solicitors, MacPherson, Leslie & Tyerman (“MLT”), in relation to the respondent’s claim in Queen’s Bench Action No. Q.B.G. No. 2270/97, J.C. Regina (the “Action”), pending the petitioner’s application or further court order;(b) restrains MLT from releasing or paying to the respondent any monies that they have received or may receive in relation to the Action;(c) restrains MLT from releasing or paying to any Chris Anderson or Christopher Anderson, any monies that they have received or may receive in relation to a claim by a Chris Anderson or Christopher Anderson against the Attorney General of Canada; and(d) restrains the respondent from disposing of any of the monies that he has received or may receive in relation to the Action or any claim against the Attorney General of Canada pending the petitioner’s application or further court order. [2] By notice of motion, the petitioner has applied to have the ex parte order set aside insofar as it applies to the Attorney General of Canada but seeks to continue the restraining order against the respondent and his solicitors, MLT. The respondent has applied to have the interim order set aside. Both parties agree that the provision in the ex parte order referred to in (c) above is not required and should terminate. It is so ordered. Likewise, the ex parte order is lifted as against the Attorney General of Canada. [3] As to the balance of the order, the respondent argues that restraining order granted under s. of the Act is preservation of property order and should not be granted, whether ex parte or otherwise, because the petitioner has not met the tests that governs the granting of such orders. He submits that the criteria for the granting of preservation order are identical to those that must be considered in an application for an interlocutory injunction. He therefore argues that the court must consider: the strength of the plaintiff’s case; whether the plaintiff will suffer irreparable harm if the injunction is not granted; and whether the balance of convenience (i.e. the risk of injury to the plaintiff if the injunction is not granted, versus the probability of harm to the defendant if it is) favours the granting of the injunction. [4] The Court is not satisfied that the jurisprudence with respect to injunctive remedies based on inherent or equitable jurisdiction of the court applies to an application under s. of the Act. If the criteria required to grant restraining order pursuant to the Act were meant to be the same as those required to grant an injunction pursuant to s. 45 of The Queen’s Bench Act, R.S.S. 1978, c. Q-1, there would have been no need for the unique provision in s. of the Act or its immediate predecessor. In view of s. 10 of The Interpretation Act, 1995, S.S. 1995, c. 11.2, the Court interprets s. as remedial provision which is intended to fill gap in the existing legislative scheme. As s. was enacted to provide solution where none had previously existed, it is to the terms of the statute itself that the Court must primarily look for determination of the appropriate considerations upon which it may exercise its powers thereunder. Section provides: 8(1) On application by claimant, the Court of Queen’s Bench may make an interim or final order restraining the disposition or wasting of assets that would impair or defeat claim pursuant to this Act. (2) An application pursuant to this section may be made ex parte at the discretion of the court. [5] Section of the Act grants the court authority to restrain the “disposition or wasting of assets”. This authority is limited to circumstances where the disposition or wasting “would impair or defeat claim pursuant to this Act”. Under the Act, the Court is allowed to exercise its discretion in deciding whether an application for restraining order should be granted. This section also allows the claimant to make an ex parte application for restraining order. Section creates new but very limited form of injunctive relief with this extraordinary remedy being available for the sole purpose of preventing the impairment or defeat of the Act. [6] The respondent also argues that before the Court can exercise its discretion to grant restraining order it should have some evidence that the party to be restrained could or would impair or defeat claim under the Act. The respondent submits that in this case, no such evidence is available. [7] The evidence establishes that the respondent has never had assets of significant value and the Court agrees that it has insufficient evidence upon which it could reasonably conclude that if the respondent acquired substantial funds that he would imprudently or improperly dispose of such funds or otherwise fail to use them to support his family. The respondent submits that the existing ex parte interim order wrongly assumes that he will dissipate his assets; that the entire underpinning of the order is based on an uninformed and biased assumption that person who has received social assistance for the majority of his adult life and then receives significant lump sum of money will somehow squander his money without regard to his moral and legal support obligations. He argues that such an assumption is highly prejudicial and results in an unfair treatment of those who have previously not had the ability to adequately support their families. [8] This argument is appealing, but to embrace it, the Court must find that before s. restraining order can be granted, the Act requires it to have some evidence of respondent’s predilection or intention to waste assets. Here, the statute contains no such requirement and if the legislature had intended it as precondition to the granting of this extraordinary remedy, it could easily have done so by express language as it is in other statutes. In this regard, the Court has compared the wording of s. of the Act with s. 55 of The Enforcement of Maintenance Orders Act, 1997, S.S. 1997, c. E-9.21, and s. 29 of The Matrimonial Property Act, 1997, S.S. 1997, c. M-6.11 which also permit the Court to grant ex parte orders restraining respondent’s ability to deal with his or her assets. Section 55 of The Enforcement of Maintenance Orders Act, 1997 very specifically circumscribes when restraining order may be granted. 55(1) On an ex parte application by the claimant and where the court is satisfied that the respondent is hindering or defeating or is attempting to hinder or defeat the enforcement of maintenance order by dissipation, gift or transfer of assets, the court may make an order: (a) restraining any dealing with, or gift or transfer, of, the property; or (b) appointing receiver in accordance with section 49. (2) On an ex parte application by the claimant and where the court is satisfied that the respondent is attempting to hinder or defeat the enforcement of arrears under maintenance order by leaving Saskatchewan, the court may issue warrant for the arrest of the respondent for the purpose of bringing the respondent before the court to be examined with respect to his or her ability to meet his or her obligations pursuant to the maintenance order. [Emphasis added] [9] Section 29 of The Matrimonial Property Act, 1997, also carefully circumscribes the authority of the Court to restrain the conduct of property holding spouse. The section states: 29(1) The court has the powers conferred by subsection (2) where the court is satisfied that spouse: (a) is about to commit an act amounting to dissipation, and that action may defeat claim of the other spouse pursuant to this Act; (b) is about to abscond with any matrimonial property, and that action may defeat claim of the other spouse pursuant to this Act; (c) intends to transfer matrimonial property to person for less than adequate consideration, and that action may defeat claim of the other spouse pursuant to this Act; or (d) intends to make substantial gift of matrimonial property, and that action may defeat claim of the other spouse pursuant to this Act. (2) For the purposes of subsection (1), the court may do any of the following: (a) make an order restraining the making of the transfer or gift or the absconding with the property; (b) make receiving order or any other order that it thinks fit for the purpose of restraining the dissipation or further dissipation of the property or for the possession or delivering up, safekeeping and preservation of the property. (3) An application for an order pursuant to subsection (2) may be made as an application in proceedings commenced pursuant to this Act, by notice of motion or in any other manner that may be prescribed in the rules of court. (4) An application for an order pursuant to subsection (2) may be made ex parte and, where an application is made ex parte, the court may: (a) dispense with service of the notice of the application; or (b) direct that the notice of the application be served at any time and in any manner that the court thinks fit. (5) Every person who knowingly and wilfully refuses or neglects to comply with an order made pursuant to subsection (2) is, in addition to any other liability that person may incur, guilty of an offence and liable on summary conviction to fine of not more than $1,000.00. [Emphasis added] [10] In contrast, the Act does not require the Court to be satisfied that the respondent is hindering or defeating, will hinder or defeat, or will attempt to hinder or defeat claim. Nor does the Act limit the circumstances in which restraining order may be granted as does The Matrimonial Property Act, 1997. The only requirement is that the disposition or wasting of the asset would impair or defeat claim under the Act. [11] When a respondent has only one asset that could reasonably become a source of satisfying a claim under the Act, not only his or her dependants, but society as a whole has an interest in ensuring that the asset will be used first and foremost for such purpose. If the asset is not available for claim under the Act, then it is society who will inevitably assume respondent’s responsibility for his or her dependants. Perhaps this is why the court’s primary focus under s. is directed to determining whether, in the circumstances before it, disposition or wasting of the specified asset would impair or defeat claim under the Act. Where there is any risk that claim may be impaired or defeated, whether or not an intention to do so has been evidenced, the court has the discretion to issue restraining order. In framing s. of the Act as it has, the legislature has apparently determined that the protection of dependants outweighs an individual’s rights in property. Unfortunately, this may result in restraining orders being more frequently available where the parties have limited resources, but these are also the circumstances where it is most critical to ensure means of protecting source of income for dependant children and spouses. [12] In this case, the Court is satisfied that the respondent’s personal claim for damages in the Action is the only asset that he has at this time that might give him an ability to satisfy the claim under the Act that has been made by the petitioner on behalf of herself and the children, Joel Kelly Morgan Raphael, born August 27, 1990 and Tosha Lauren Anderson, born February 5, 1992. Although there is no persuasive evidence that upon success in his Action the respondent would not voluntarily ensure that any claim under the Act is satisfied, the Court accepts that if the entire proceeds from the Action were disposed of, the petitioner’s claim under the Act would be impaired or defeated. However, if the Action results in proceeds of between $100,000.00 to $143,500.00, as hoped for by the respondent, it is unlikely that the full amount would be required to satisfy any claim under the Act. No evidence was presented regarding the potential value of the petitioner’s claim. Without prejudging the merits, if any, of the petitioner’s claim for herself and the children, the court is prepared to arbitrarily determine that the sum of $40,000.00 will likely be sufficient security for the claim under the Act. Accordingly, for the time being, the restraining order will attach only to the first $40,000.00 of funds received by the respondent if and when any amount, whether by judgment or settlement, becomes payable to him pursuant to the Action. As indicated, this $40,000.00 figure is purely arbitrary and either party may at any time apply to raise or lower it based on evidence available at the time of such application. [13] The Court is not satisfied that the restraining order should extend to any one other than the respondent. Section only authorizes restraining orders against those against whom claim under the Act may be made since it is only they who may dispose of or waste assets from which claims may be satisfied and thereby impair or defeat claim. The ex parte restraining order against MLT shall therefore be lifted. [14] Costs are reserved to be dealt with on the hearing of the application for maintenance under the Act which may be brought back before any presiding judge upon ten days’ notice.

The petitioner obtained an ex parte order under the Family Maintenance Act which restrains the Attorney General from paying any money owing under an action in Queen's Bench to the respondent and his solicitor and restraining the respondent from disposing of any monies received in the action. The respondent applies to have the order set aside. The respondent argues that a restraining order under the Act is a preservation of property order and should not be granted because the petitioner has not met the tests that govern the granting of such orders. He submits that the criteria for the granting of a preservation order is the same as for a interlocutory injunction. The respondent argues that before the Court can exercises its discretion and grant an order, is should have some evidence that the party being restrained would defeat a claim under the Act. HELD: The Court is satisfied that the respondent's personal claim for damages is the only asset the he has to satisfy the claim under the Act. Without prejudicing the applicant's claim, the Court will arbitrarily determine that the sum of $40,000 will likely be sufficient security. For the time being, the order will attach to the first $40,000 of funds received by the respondent, if and when any amount becomes payable to him. The parties may apply to vary this amount in future. Costs are reserved to be dealt with on the hearing of the application for maintenance. The Court is not satisfied that the jurisprudence with respect to injunctive remedies based on inherent jurisdiction of the court applies to an application under s.8 of the Act. If the criteria for granting a restraining order under the Act were meant to be the same, there would be no need for the unique provision of the Act. As s.8 was enacted to provide a solution where none had existed, the Court must primarily look to the statute itself for a determination of the appropriate considerations. Section 8 of the Act grants the Court the authority to restrain the disposition of assets and creates a new, but limited, form of injunctive relief with this remedy being available solely to prevent the impairment or defeat of the Act. The statute does not require the Court to be satisfied that the respondent is hindering or defeating a claim. When a respondent has only one asset that could reasonably satisfy a claim, his dependents and society as a whole have an interest in ensuring that the asset will be used for such purpose.

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IN THE PROVINCIAL COURT OF SASKATCHEWAN SITTING AT MEADOW LAKE BETWEEN: HER MAJESTY THE QUEEN -and- KENNETH PEDERSON SR. W. Campbell for the Crown G. Morin for the Accused JUDGEMENT WHITE, P.C.J. SEPTEMBER 27, 1999 Kenneth Pederson Sr. is charged with seven violations of The Occupational Health andSafety Act, 1993 being Chapter 0-1.1 of the Statutes of Saskatchewan and the Regulationsmade pursuant to the Act. The charges read as follows: 1. That on or about the 17th day of October 1996 at St. George’s Hill, Saskatchewan he did fail to ensure, in so far as is reasonably practicable, the health, safety and welfare at work, of his worker, Kenneth Shatilla, contrary to S. 57 of the Act (as above). 2. That on the same date and place did contravene S. of the Act and Regulations by failing to ensure that all work at the place of employment was sufficiently and competently supervised, and did fail to ensure that every Supervisor conducted himself and the work under his supervision in safe and responsible manner and in compliance with the Act and Regulations contrary to S. 57(b) of the Act. 3. That he failed to ensure that no worker was permitted to perform work unless the worker was sufficiently experienced or instructed to perform the work safely and in accordance with the Regulations or under close and competent supervision, contrary to S. 57(b) of the Act. 4. That he did contravene S. 56(1) of the Regulations in that he failed to provide and maintain for work site readily accessible first aid station containing required supplies and equipment, contrary to S. 57(b) of the Act. 5. That he did fail to ensure that his worker, present in trench more than 1.2 metres in depth, was protected from any cave-in or sliding material, contrary to S. 57(b) of the Act. 6. That he did contravene S. 260(6) of the Regulations in that he did fail to ensure that competent worker was stationed on the surface when worker was in trench contrary to S. 57(b) of the Act. 7. That he did contravene S. 260(7) of the Regulations by failing to ensure that when worker was required to enter trench, safe means of access to and egress from the trench is provided at suitable locations, contrary to S. 57(b) of the Act. [1] Winter comes early in Northern Saskatchewan and it lingers for long time. [2] The fall and the spring are times of intense activity. [3] Unfortunately, haste and inexperience often hatches death especially in the North and especially in the construction industry. [4] Late in the month of October 1996 Kenneth Pederson Sr., the defendant in this case,obtained a contract from the Hamlet of St. George’s Hill to install sewer and water lines on four lots. [5] This he arranged to do by using the services of an individual he knew by the name of Russell Woods who was hired to do the backhoe work on the excavation. The arrangement was that Pederson Sr. supplied the backhoe, the piping and the gasoline and Woods and pipe- layer were to do the work; the understanding was that the men would be paid wages on an hourly basis according to the defendant and according to Mr. Woods. [6] The defendant had intended that Woods would be assisted in the laying of the pipe by an experienced worker by the name of Wayne Clarke; Clarke was not available to do the job and therefore Woods used his nephew, Kenneth Shatilla.. Woods had about 15 years experience but most of the trenching experience that he had was ‘in the hole’ as pipe-layer rather than as backhoe operator. Shatilla had no experience in sewer and water trenching to speak of. [7] The excavation was completed on October 17, 1996 in the afternoon; the trench was extremely dangerous because it had straight-cut walls with no appreciable sloping. In addition, there was no ladder or first aid supplies. Furthermore, the walls of the trench were not secured with proper bracing or shoring and finally the soil pile was too close to the edge of the trench. The trench varied in depth from two to three metres over its length which was about twelve to fifteen metres and its was about 1.1 to 1.2 metres wide. [8] The soil in this area of St. George’s Hill is clay and holds well in the normal course of things. However, at the location of the junction of the old line into which the new lines were to be connected the soil had been disturbed by reason of previous excavation making it less stable than the newly dug trench further away from the junction. [9] It was at this location that Kenneth Shatilla was buried by cave in and died at about 5:30 p.m. on October 17, 1996. Just prior to the cave-in Russell Woods left his inexperienced nephew alone in the trench and went to look for piece of pipe located near trailer on the surface He was gone for about minute. [10] Part of the wall collapsed along its length and fell upon Shatilla. It took about two hours to dig him out. He died because he had suffocated by reason of lack of oxygen. [11] The essential facts of this case are not in dispute and they are fairly straight-forward. The defense objected to the admission into evidence of remedial progress report that was simply marked for identification pending the ruling of the court. Because the uncontestedfacts of this case are quite sufficient for the purpose of reaching a final judgement on themerits of the case I have decided to rule the report inadmissible without addressing thetechnical aspects of the ruling and without making a formal comment on the legalarguments put forth pro and con regarding the issue of admissibility. think that it is unnecessary to do so in this case and leave it to another court on another day when the issue may be central to the outcome of case to carefully consider the matter and to rule in an authoritative and precedentially significant manner at that time. [12] The principle issues in the case are, as follows:· (a) did the defendant have an obligation imposed by law with respect tothe workers at the St. George’s Hill excavation site?· b) if the defendant did have a legal obligation did he discharge itby exercising due diligence in the circumstances? (Both the Crown and Defense agreed that offences under consideration are strict liability and therefore bring into play the possible defense of due diligence.) [13] The Act defines “employer” to mean: “a person, firm, association or body that has, in connection with the operation of place of employment, one or more workers in the service of the person, firm, association or body.”(s. 2(i)) The Act defines “self-employed person” as: “a person who is engaged in an occupation but is not in the service of an employer.” (s. (cc)) “Worker” is defined as: “a person who is engaged in an occupation in the service of an (s. 2(ff)) The Act does not define “due diligence” but well-established case authority simply defines this as taking reasonable care to avoid causing harm which is prohibited by law. Another way of putting this is to ask if the defendant was negligent or not? Or stated otherwise would reasonable person in the position of the defendant have done anything differently to guard against and protects against the harm contemplated by the occupational health and safety legislation. [14] The evidence is clear that the relationship between the defendant Mr. Pederson Sr. and Mr. Woods and Mr. Shatilla was one of an employer to workers. In older parlance one would say that this relationship was one of master and servant or employer and employee. Clearly, Woods and Shatilla were in the occupation of trenching and pipe-laying in the service of the defendant Pederson [15] Woods and Shatilla had no expectation of receiving anything but wages for hours worked at St.George’s Hill; they certainly had no prospect of making profit on the job wages not profits were in the contemplation of all involved. They used backhoe leased by Peterson,fuel provided by Pederson and pipe purchased by the defendant Peterson. Who stood to make or lose money on the job? Only Mr. Pederson. He had absolute control of the work; after the “accident” it was of course Mr. Pederson who completed the job. It is noteworthy that when he did so he discovered just how badly the initial work and the hookups were done and he had to correct the major errors that had been made not only with the trenching but also the piping. [16] The relationship between the defendant and Woods and Shatilla had all the ordinaryindicia of an employer/employee or employer/ worker relationship. Mr. Peterson controlled theproject and the tools and the materials ; he bore the risk of profit or loss. In these circumstances it is my opinion that Woods was not “self-employed person” because this was not situation akin to contractor and sub-contractor where the contract is for lump sum and the sub-contractor absorbs his own risk of profit or loss on the job. [17] Woods and Shatilla were working for wages in the service of Pederson; he was theiremployer; he directed them to do the work and he had ultimate responsibilityfor the worksite and the completion of the project. In my opinion the fact that Woods arranged for his nephew to work with him does not make Woods an employer since the three men all understood that this would be work for wages in the service of Mr. [18] This is quite important because the legal obligations imposed by The Occupational Health and Safety Act 1993, S.S. 1996, c. 0-1.1 and the Regulations made thereunder that form the subject-matter of this case would not apply to the defendant if he were merely “contractor” rather than an “employer”; in that case they would only apply to Woods presuming that court had determined that he was “self-employed person” acting as sub-contractor which have specifically adjudged that he was not in the circumstances of this case. [19] There is no doubt in this case that the defendant had complete control of the two workers but that he chose not to supervise the work site because he was extremely busy with other business matter which had taken him to Laloche and then to Saskatoon when the trenching was being done at St. George’s Hill. [20] It seems to me that once one finds that there was legal duty on the defendant as an employer under the Act then his obligations under the law are to take active steps to supervise and oversee the excavations to make sure that the usual protocols for job safety are met. At minimum this would have required the presence of an experienced person on site (either Mr. Peterson Sr. or someone on his behalf with his authority to give orders and directions at the worksite). Of course, any reasonable person with some knowledge of worksite safety in relation to trenching would insist that the walls be properly sloped, that there be ladder or other method to get into out of the trench safely, that there be first aid supplies readily available. In addition, supervision of the worker in the trench is essential to the safety of the worker and it is especially so when the worker in the trench is inexperienced. As a matter of fact no inexperienced person ought to be allowedto work on such a potentially dangerous site without proper training and specificguidance and supervision. [21] The Law is specific on the requirements to be met for the safety of workers when excavation and sewer and water hookups are undertaken. These are as follows: S.3 of the Act stipulates: “Every employer shall (a) ensure, insofar as is reasonably practicable, the health, safety and welfare at work of all of the employer’s workers; (e) comply with this Act and the regulations. S. 57(a) and (b)make it an offence to contravene duty imposed under s.3 or the regulations. S. of the Regulations stipulates: “Every employer shall, so far as is reasonably practicable ensure, that: (a) all work at the place of employment is sufficiently and competently supervised; (b) every supervisor has sufficient knowledge of the Act and the regulations in force under the authority of the Act and the information and means to ensure that work under his supervision is carried out in manner which is safe and without risk to health; and (c) every supervisor conducts himself and the work under his supervision in safe and responsible manner and in compliance with the Act and every regulation in force under the authority of the Act.” S. of the Regulations stipulates: “Every employer shall ensure that no worker is permitted to perform work unless that worker is sufficiently experienced or instructed to perform the work safely and in accordance with the regulations in force under the authority of the Act or where that work is done under close and competent supervision.” S. 56(1) of the Regulations stipulates: “The employer shall provide and maintain for every work site readily accessible first aid station ....” S. 260(1) of the Regulations stipulates: “Where worker is present in trench more than 1.2 metres in depth, the employer shall ensure that he is protected from any cave-in or sliding material by: (a) cutting back the upper portion of the walls to an angle of not less than 30degrees to the vertical in hard compact ground so that any remaining vertical wall does not exceed 1.2 metres in height; (b) the installation of temporary protective structure; or (c) combination of cutting back the walls and the installation of temporary protective structure.” S. 260(6) of the Regulations stipulates: “When any worker is in trench, the employer shall ensure that competent worker is stationed on the surface to alert any worker in the trench about the development of any potentially unsafe conditions and to provide assistance in an emergency.” S. 260(7) of the Regulations stipulates: “Where any worker is required to enter trench, the employer shall ensure that safe means of access to and egress from the trench is provided at suitable locations. [22] The defendant did not recognize or give recognition to his responsibilities imposed by law on this worksite. He was negligent. If he had taken reasonable care the “accident” would not have happened since he would not have allowed such inexperienced people as Woods and Shatilla to do the work. [23] In any event, once Peterson made the decision to hire these two men, he had duty to make sure that they followed the most basic of safety rules. He did not do this. Had he done this there at least would have been proper safety measures taken at the worksite so that even with these inexperienced workers doing the job their safety could easily have been ensured by taking the simple and common sense steps mandated by the law embodied in the Act and Regulations that govern workplace health and safety for example, properly sloping the trench). [24] Mr. Peterson violated the law by his failure to take any reasonable precautions to prevent death or injury to the workers whom he was responsible for on the worksite in St. George’s Hill. [23] Mr. Pederson is therefore guilty as charged on all offences. Dated at the Town of Meadow Lake, Saskatchewan the 27th of September, 1999. T.W. White, P.C.J.

The defendant, who was to install sewer and water lines on four lots for the hamlet, was charged with seven violations of the Occupational Health and Safety Act and Regulations. It had been agreed that the offences were strict liability. The principle issue was whether the defendant had an obligation imposed by law with respect to the workers and if so whether he discharged it by exercising due diligence in the circumstances. The essential facts were not in dispute. HELD: The defendant was found guilty on all offences. 1)There is a legal duty on an employer under the Act to take steps to supervise and oversee excavations to ensure the usual protocols for safety are met. This requires at a minimum the presence of an experienced person on site. Any reasonable person with some knowledge of worksite safety would insist that the walls be properly sloped, that there be at a ladder or other method to get out of the trench and that first aid supplies were readily available. Supervision is essential particularly when the worker is inexperienced. The deceased had had no experience in sewer and water trenching. No inexperienced person should be allowed to work on such a potentially dangerous site without proper training and specific guidance and supervision. The Law is specific on the requirements to be met for safety of the workers on excavation and sewer and water hookups. 2)The remedial progress report was ruled inadmissible. There was no formal comment on the issue of admissibility. 3)The Act does not define due diligence but well established case authority defines it as taking reasonable care to avoid causing harm which is prohibited by law. 4)The Act does not apply to a contractor. The relationship had all the ordinary indicia of an employer/employee relationship. The defendant controlled the project, tools and materials and bore the risk of loss or profit, had the ultimate responsibility for the worksite, completion of the project and the payment of wages.

b_1999canlii12407.txt

J. 1990 S.H. No. 72685 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: MARIE GOODFELLOW and DERIK BRUCE MacDONALD DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Felix A. Cacchione on November 14, 15, 16 17, 1994 DECISION: February 14, 1995 COUNSEL: R. Ritchie Wheeler, solicitor for the plaintiff Robert M. Purdy, solicitor for the defendant CACCHIONE, J. This is an action for damages for injuries suffered by the plaintiff as a result of a motor vehicle accident which occurred on May 31, 1988. The plaintiff was stopped on the Cole Harbour Road by flagman to allow piece of heavy machinery to back out onto the Cole Harbour Road. Her motor vehicle was struck from behind by motor vehicle operated by the defendant. The only damage to the plaintiff's motor vehicle consisted of bent bumper, which had to be replaced at cost of $528.61. The defendant admitted liability, and the only issue for this court to determine is damages. At the time of the accident, the plaintiff was pushed forward in her seat and may have hit the steering wheel. Her seat back was not broken, and the plaintiff acknowledges that the accident was not violent impact. Although she felt soreness in her neck, she proceeded to her workplace and worked her full shift that day. It was only later that evening that she began to experience back pains. The following day she visited her family physician complaining of sore neck and back pain. He treated her with pain killers and prescribed rest and heat treatments. On June 1, 1988, Dr. O'Connor, her family physician at the time, referred to her symptoms as severe pain in her neck and worsening of her previous low back pain. The plaintiff was 46 years old at the time of the accident and had been working as Certified Nursing Assistant (CNA) at the Nova Scotia Hospital for approximately nine years prior to the accident. She had worked as CNA at different hospitals since 1960 except for periods when she stayed home to have her children. During the period from 1960 to 1988, the plaintiff worked continuously as CNA on full‑time or part‑time basis except for total of seven years when she was either raising her children or residing in another province. The majority of the doctors who testified, both for the plaintiff and the defendant, agreed that the work of CNA is strenuous and even more so for CNA working at the Nova Scotia Hospital because, at that institution, CNAs often deal with patients who are unruly and hard to handle. Doctor Loane, specialist in physical medicine and rehabilitation, called by the defendant, testified that CNAs have the highest incidence of lower back pain of any occupation. He indicated that they run 30 percent risk of being disabled through work. In his opinion, the chances of CNA working through to retirement is the lowest of all occupations. The plaintiff returned to work and continued working at her normal duties for approximately one month after the accident. She found bending and lifting hard to do and noted stiffness in the morning. Her condition worsened to the point where she had to stop working towards the end of June, 1988. She has not returned to work since that date. Courses of therapy such as physiotherapy, laser treatment, TENS treatment and back braces, have not improved her condition to any great degree. The plaintiff received short‑term disability payments from June to November, 1988, and has been on long‑term disability since November 17, 1988. In December, 1988, the plaintiff began suffering from shooting pains in her legs, although she had had somewhat similar, but not as intense, pains in the same area as far back as December, 1987. The plaintiff acknowledged having had previous back problems as far back as 1975. These back problems caused her to miss some time from work, although not great deal of time from work was lost. However, in 1987, the plaintiff injured her back while at work. The injury, although described as mild back sprain, was of sufficient severity to prevent her from working from August 14, 1987, to January 8, 1988. Upon returning to work, the plaintiff continued her employment after the accident and missed only few days due to the flu and headaches. The plaintiff did admit that in February, 1988, her back began to ache after she had to take patient to the Dartmouth General Hospital and that patient became aggressive. This aggressiveness caused her to wrestle with the patient thereby causing some further soreness in her back. The plaintiff testified that her condition has worsened monthly since the accident. She cannot sit for any extended period, nor can she do what used to be her day‑to‑day activities. For example, grocery shopping must be done in stages since she cannot stand for any extended period. two‑hour trip by car requires her to stop two or three times because of the pain. She can no longer walk any great distance and can only do things for short periods before she has to rest. The plaintiff also suffers from other medical problems such as lung condition, which requires her to use both an inhaler and mist machine, and from chest pains for which she takes medication. She also suffers from high blood pressure for which she also takes medication. The lung condition alone, according to her evidence, would prevent her from working as CNA since she must use the mist machine four times each day with each treatment lasting approximately 15 minutes. This lung condition has been in existence for sometime and has required treatment since 1992. The hypertension has been treated with medication since 1993. The plaintiff suffers from further medical difficulties such as numbness in her left arm and pain in her neck. The plaintiff agreed that, as far back as 1988, her family physician discussed with her change of career due to her back pain. Her physician was, at that time, of the opinion that she would always have this back condition. The plaintiff submits that she could have worked until retirement, although perhaps not in mental institution. According to Roberta Deering, the Coordinator of Personnel Administrative Services at the Nova Scotia Hospital, the plaintiff could have taken early retirement at age 58 under the rule of 80. This would mean retirement in October, 2000. Her full retirement would take place in February, 2007. The plaintiff did testify that she considered retiring when her husband turned 60, which would have made her 56 years old. As previously noted, the medical evidence establishes that it is not uncommon for nurses, and CNAs in particular, to suffer from back injuries. The medical evidence led at trial shows that the plaintiff suffers from an exaggerated angle of the lower spine where it attaches to the pelvis. This exaggerated angle suggests mechanical instability of the spine at this juncture and may also be an indicator of early degenerative changes. According to Dr. Canham, an orthopaedic surgeon called by the plaintiff, the accident of May 31, 1988, aggravated pre‑existing condition in the plaintiffs lower lumbar spine. In 1989 he cautioned the plaintiff about going back to work as CNA and suggested that she look for lighter type of employment rather than undergoing surgical intervention as means of dealing with her difficulties. In August, 1988, the plaintiff was examined by Dr. Shears at the Nova Scotia Rehabilitation Centre. He diagnosed superimposed cervical sprain and some biomechanical instability at the lumbosacral junction which caused her problems in the past. Dr. Shears suggested that the motor vehicle accident precipitated new attack of this lower back problem. His recommendation at the time was that her facet joints in the problem area should be injected with cortisone‑like substance, however, the plaintiff chose not to follow this course of treatment. Instead, the plaintiff chose to wear Harris brace, which was also recommended by Dr. Shears, and to follow course of exercise recommended by him. The defendant argued that the plaintiff failed to mitigate her damages by not agreeing to the cortisone injections. am, however, satisfied from the evidence of Doctors Loane and Yabsley, both of whom were called by the defendant, that such injections would not cure the plaintiff but simply give her some partial symptomatic relief. am not convinced that the failure to proceed with these injections should be viewed as failure to mitigate her damages. What is clear from the medical evidence adduced by both parties is that the plaintiff suffered from pre‑existing condition which was aggravated by the motor vehicle accident. am satisfied that the plaintiff would have developed back problems regardless of the accident because of such things as her age, the mechanical instability of her spine, the strenuous work she performed and, most importantly, her previous back injury. The most serious previous back injury caused the plaintiff to be off work for period exceeding four months. This, in and of itself, speaks volumes about the seriousness of her pre‑existing condition. The medical experts were in agreement that, having suffered previous injury to her back, the plaintiff was of higher risk of suffering further back injury. Dr. Colwell, specialist in physical medicine called by the plaintiff, opined that the plaintiff was suffering from disc degeneration prior to the accident but that the accident speeded up the process which was ongoing in her spine. He agreed that the type of work the plaintiff did added strain to her spine, but he felt that she could have continued working for approximately 10 to 15 years, had the accident not occurred. His opinion on this point was not one which was shared by other medical witnesses called by both the plaintiff and the defendant. Dr. Canham suggested in November, 1989, that the plaintiff should seek some lighter work. Dr. Loane, specialist in physical medicine called by the defendant, was of the opinion that the plaintiff could not have continued with her employment for such long time because she was predisposed to such back injuries due to her anatomical make‑up, the strenuous nature of the work she performed, and her previous significant back injury. Initially when Dr. Loane examined the plaintiff, he believed that she was suffering from disc protrusion, however, after reviewing the results of CAT scan, he revised his opinion and concluded that the plaintiff had disc degeneration. Dr. Loane believed that this process had begun before the motor vehicle accident due to the presence of certain symptoms and the aging process itself. He based his opinion about the disc degeneration on certain cervical spine x‑rays taken in June of 1988. These x‑rays showed degeneration of the cervical spine at that stage. Dr. Loane testified that, if the sole cause of the damaged disc was the accident, he would have expected to see acute pain and radicular signs of nerve irritation within weeks after the accident. He would have also expected to see narrowing of the disc space within period of three to six months after the accident. This narrowing of the disc space would have been accompanied by the onset of bone spurs. Certain risk factors were noted by Doctor Loane as leading to the disc degeneration, These included the plaintiff's occupation as CNA which required strenuous activities such as bending, lifting and managing unruly patients; the presence of mechanical instability in her spine, as noted by the x‑rays and the radiologist's reports; previous back injury, coupled with prolonged recovery period off work; and, finally, return to work while still in pain. Dr. Loane was of the view that the motor vehicle accident itself was not the cause of the disc degeneration but simply one of the factors leading to this. When he examined the plaintiff in 1992, he was of the opinion that, at that point, she was completely disabled. Both Doctors Loane and Yabsley were of the opinion that the plaintiff was going through degenerative changes even before the accident and, therefore, susceptible to having further back problems. In Reid v. Googoo (1993), 119 N.S.R. (2d) 207, Kelly, J. states at pp. 211‑213: "[23] number of decisions of this court, including King v. Briand's Cabs Ltd. and MacDonald (1984), 64 N.S.R. (2d) 210; 143 A.P.R. 210 (Clarke, J.) (as he then was), Dauphinee v. Canada Life Assurance Co. et al (1988), 86 N.S.R. (2d) 101; 218 A.P.R. 101 (Glube, C.J.T.D.), and Bush v. Air Canada (1991), 1991 CanLII 4382 (NS SC), 103 N.S.R. (2d) 308; 282 A.P.R. 308 (Gruchy, J.), adopted the comments of Hallett, J. (as he then was), in Greek and Hillier v. Ernst (1980), 43 N.S.R. (2d) 191; 81 A.P.R. 191 (T.D.), regarding the evaluation of cause where injuries are superimposed on earlier injuries. At pp. 200‑202 he states: '[21] The difficulty in this type of case is that application of the principle that the wrongdoer takes the victim as he finds him really does not answer the question as to whether the victim's present complaint was caused by the defendant's negligence. In attempting to assess damages so as to arrive at fair and reasonable compensation for pain and suffering and disability where there is preexisting condition, the court must first answer that question. On that issue, the victim must prove on balance of probabilities that the present complaint was caused in whole or in part by the wrongdoer's negligence. To answer that question, the court will invariably have to consider the medical evidence to determine whether the victim, because of his pre‑accident condition, would probably have suffered from the present complaint whether there had been an accident or not, If the victim cannot prove that the ongoing complaint was caused in whole or in part by the defendant's negligence, there cannot be an award for damages for the ongoing complaint (I use the term ongoing complaint to mean pain and suffering and/or disability that has continued to the date of trial). This assessment can be particularly difficult in the many cases involving either preexisting degenerative changes in the spine or osteoarthritis in the joints where the victim was symptom‑free before the injury was sustained. As in this case, very often the preexisting condition first manifests itself on x‑rays taken immediately following the injury. Usually the victim's position at trial is stated to the court in simple logic, "I was in good health; then had the accident; now have sore back; therefore the accident caused my present complaint." Very often the medical evidence, including the x‑rays, proves that the victim, although he was unaware of the problem, had degenerative changes in the spine or advanced osteoarthritis before the accident which gives rise to the lawsuit. It seems to me that in most of these cases, despite the victim's apparent logic, the court will have to accept the usually uncontradicted medical testimony that the victim did in fact have preexisting condition and that the damages must be assessed with this fact in mind. [22] Having reached that point, the court, in order to make an award that reflects the pain, suffering and disability, if any, that continues, must then answer the critical question whether the victim has proven that the present complaint was caused by the defendant's negligence and on that issue, it seems to me, the court will generally have to accept expert medical testimony as to the cause of the victim's present complaint rather than the apparent logical conclusions of the victim. In some cases, the medical opinions are to the effect that the preexisting condition was aggravated by the injury and the victim continues to suffer by reason of such aggravation; in such cases the victim must be compensated to greater extent than victim who had no such susceptibility. However, in many difficult cases, the medical opinions go no further than to say that the victim's present complaint was accelerated or aggravated for period of time only by the injury sustained in the accident. In these cases, the victim has failed to prove that the ongoing complaint was caused or aggravated by the wrongdoer's negligence. Despite the fact that wrongdoer takes his victim as he finds him. the victim to be awarded damages to compensate him for the ongoing complaint must make the causal connection between the defendant's negligence and the ongoing complaint and this he must prove on balance of probabilities [my emphasis added]. Where the victim fails to discharge the burden on this issue, he is left at most with damage claim for (1) the pain and suffering he endured for period of time that was more intense than it would have been had he been normal and he must be compensated accordingly; and (2) the ongoing complaint to the extent that its onset was accelerated in point of time by the injury and he must be compensated for this. An award based on these premises will be substantially lower than an award relating to ongoing complaints that can be directly linked to the injury. However, such an award must reflect the principle that the award shall not be reduced because of the victim's "abnormal physical susceptibility" to the injury. The victim must be compensated to the extent that his present complaint was accelerated or aggravated for period of time, by reason of his susceptibility, by the injuries caused by the defendant's negligence. [23] To summarize: Where the victim has preexisting condition, the court, in assessing what would be fair and reasonable compensation to the victim, must determine to what extent the victim's present complaint was caused by the injury sustained in the accident.' On the totality of the evidence presented, I am satisfied that at the time of the accident the plaintiff was undergoing degenerative changes in her spine. These changes, however, did not prevent her from working. It was only after the accident that the degenerative changes were accelerated. I find that the plaintiff has discharged its burden of establishing, on a balance of probabilities, that the described pain problems were caused, or contributed to, by the defendant\'s negligence. am not satisfied that the defendant has established that the plaintiffs back problems were not aggravated by the motor vehicle accident. Accordingly, find that the plaintiffs present complaint was caused, in part, by the defendant's negligence. At page 213 of Reid v. Googoo, supra, Justice Kelly states: "An approach to this area of damage law was also discussed in Linden and Klar, Remedies in Tort (Carswell, 1989), at paragraph 45.1: 'As general rule, the defendant takes his victim as he finds him and is liable for the full extent of the plaintiffs injuries despite the particular plaintiff's preexisting physical or psychological susceptibility to injury. Provided that the plaintiff's preexisting condition is latent weakness or susceptibility (a thin skull) which is made manifest only as result of the defendant's conduct, apportionment between the two causes is not appropriate. However, where the plaintiff suffers from preexisting condition which is an active source of damage prior to the defendant's tortious conduct, the defendant's conduct may be taken as an aggravating factor resulting in an apportionment of damages between the existing condition or source of damage and the second or aggravating source. Thus, where plaintiffs condition was manifest and disabling prior to the injury inflicted by the defendant, damages should be assessed as if the plaintiff's condition at the time of assessment resulted from single cause. The award should then be apportioned so that the damages payable by the defendant constitute only that portion of the total amount assessable in respect to the plaintiffs disability which is fairly attributable to the defendant's tortious conduct.' [24] Here, the court must determine if the plaintiff's preexisting condition was accelerated by the defendant's action and, if so, whether it is temporary in nature. The inquiry is to determine if the continuing total disability would have occurred in any event." The evidence clearly establishes that the plaintiff, because of her age, the type of work she was doing, her previous back injury, the lengthy recovery period from that injury, and her return to the same demanding employment while still in pain, could not have continued in her employment until age 65 or even, in my opinion, to an early retirement at age 58. conclude, on the basis of all of the evidence presented, that the longest time the plaintiff could have worked would have been until age 50; that is, period of four years from the date of the accident. This finding is based, as well, on the fact that the plaintiff was suffering from chronic lung disease which required treatments of such nature as to prevent her from returning to work as CNA. Shortly after this date, the plaintiff also began suffering from such things as high blood pressure and numbness in her arm. As previously noted, the plaintiff was also suffering from degenerative changes in her spine which was evidenced by the cervical spine x‑rays of June, 1988. These changes are not reversible but rather progressive in nature. am satisfied that the plaintiff is totally disabled. As previously stated, am not satisfied that the plaintiff failed to mitigate her damages by not taking cortisone injections. It is clear that such course of treatment would have provided only temporary relief of her symptoms and not cure. Accordingly, the plaintiff is entitled to compensation for her injuries and loss of income up to 1992. She is, as well, entitled to damages for the pain and suffering caused, not only by the lower back injury but, as well, by the whiplash injury to her neck. The whiplash injury to her neck has been referred to as mild whiplash from which the plaintiff has totally recovered. I find that for this injury the plaintiff is entitled to an award in the amount of $15,000. With respect to the lower back injury, I find that the plaintiff is entitled to an award in the amount of $75,000; however, not all of this is attributable to the defendant\'s negligence. I find that the defendant is liable for 33.33 percent of this sum and, accordingly, the plaintiff shall receive $25,000 for her lower back injury. As to loss of income, I find that the plaintiff has lost income in the amount of $102,753.92 for the years 1988 to 1992. The defendant is liable for 33.33 percent of this sum which translates to $34,251 less $3,945.88 for section B benefits paid to the plaintiff. Accordingly, the total amount for loss of income is fixed at $30,305.12. The total award is, therefore, $70,305.12, together with pre judgment interest on the entire amount at rate of 2.5 percent per annum. The plaintiff shall have its costs which fix at $5,875 in accordance with Scale of Tariff A.

The 46-year-old female plaintiff sought damages for injuries suffered as a result of a motor vehicle accident. Her car was stopped by a flagman as a result of highway work when the defendant's vehicle struck her from behind. Awarding $15,000 for the whiplash injury and $75,000 for back injury as general damages. This amount was reduced to $25,000 due to a pre-existing condition. The court was satisfied there were degenerative changes in the plaintiffs spine which were accelerated by the accident. The pain problems were caused or contributed to by the defendant's negligence. An award for lost wages was also reduced by a factor of 33.%.

8_1995canlii4545.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 102 Date: 20110307 Docket: QB 236 of 2009 Judicial Centre: Yorkton BETWEEN: HER MAJESTY THE QUEEN and NORBERT F. KNOEDLER Counsel: Barrie Stricker for the Crown Daniel P. Kwochka for the Respondent JUDGMENT ON APPEAL CHICOINE J. March 07, 2011 NATURE OF THE APPEAL [1] The Crown appeals from the acquittal of the Respondent, Norbert F. Knoedler (“Mr. Knoedler”) on June 4, 2009, in Provincial Court on a charge that on or about October 27, 2007, at Esterhazy District , in the Province of Saskatchewan, having consumed alcohol in such quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, he did operate a motor vehicle, contrary to s. 253(b) and s. 255(1) of the Criminal Code and on a charge that on the same date and at the same place, while his ability to operate a motor vehicle was impaired by alcohol, he did operate a motor vehicle, contrary to s. 253(a) and s. 255 of the Criminal Code. GROUNDS OF APPEAL [2] The Notice of Appeal lists six grounds of appeal, all of which can be summarized as follows: That the learned trial judge erred in law in excluding two breath samples taken after the arrest of Mr. Knoedler on the basis that they were obtained in violation of s. 8 of the Canadian Charter of Rights and Freedoms, being the right to be secure against unreasonable search or seizure. [3] While the Notice of Appeal states that the appeal is taken from the learned trial judge’s order dismissing both charges in the information, the Crown did not set forth any grounds for setting aside the acquittal on the impaired driving charge and the issue was not pursued at the hearing of this appeal. In the circumstances, the appeal against the acquittal on the charge of impaired driving is dismissed and this appeal will proceed on the basis that the Crown seeks to overturn the acquittal on the charge of driving while over .08. [4] At the trial the Crown called two witnesses, namely, the arresting officer, Cst. Erin Lockyer, and the breathalyzer technician, Sgt. Ian Skinner. Defence counsel had given verbal notice of Charter issue at prior appearance but elected not to seek voir dire or to call any evidence in support of the Charter application. The Crown closed its case and the defendant elected not to call any witnesses. In his written decision (cited as 2009 SKPC 66 (CanLII), 341 Sask.R. 69) the learned trial judge stated the facts to be as follows: Cst. Erin Lockyer The accused was driving on Highway #22 near Esterhazy, Saskatchewan, on October 27, 2007, around 9:50 p.m. The accused was initially observed by the officer from her patrol car, as travelling on Highway #80 and turning east onto Highway #22. The officer made no observations of improper driving at that time. The accused was then observed by the same officer as having returned to the intersection of Highways #80 and #20 [sic], and just before reaching the stop sign, at the intersection, making complete U-turn in his pickup truck, turning back eastbound on Highway #22. 10 Upon seeing the pickup truck driven by the accused initiate U-turn, Cst. Lockyer, who was travelling south on Highway #80 toward the intersection of Highways #80 and #22, turned left onto Highway #22 and activated the emergency lights of the marked police vehicle to initiate traffic stop of the accused’s pickup truck. 11 The officer suspected that the pickup truck, in doing full U-turn near the intersection, was trying to evade the approaching police vehicle. Additionally, the U-turn was unlawful. The officer testified that the accused had explained having to make the U-turn because he was lost and was trying to return to Gerald, where he had participated in quadding event earlier that day, and hoped to reorient himself so that he could find his way home to Weyburn from there. 12 But for the U-turn itself, the officer made no notice of any abnormal driving. 13 The officer testified that the accused pulled over in normal fashion in response to the police lights, and upon coming to stop immediately exited his vehicle and walked toward the police car. 14 The accused while walking toward the police officer asked “Where’s Gerald?” meaning, where was the town of Gerald, which was about 24 kilometres east on Highway #22. The officer then asked for his driver’s licence and registration, at which point the accused turned to return to his vehicle, stumbled and losing his balance fell shoulder first into his own truck. The accused was noted by the officer as taking about three minutes to locate his photo identification. 15 While the accused searched his vehicle for documentation, the officer noticed an odour of alcohol coming from the vehicle, later identified as coming from the accused’s breath. The officer testified to no other swaying or difficulty over this three minute observation period. The officer arrested the accused for impaired driving at 9:53 p.m. while he was inside his truck. 16 The officer then asked the accused to give up his keys, because she felt the accused had been drinking. The accused was cooperative and gave up the keys. 17 The officer testified that the accused admitted to having consumed alcohol, with his last drink consumed few hours earlier. The officer had initially intended to do roadside test, but following conversation with the accused, the officer made the additional observation of slurred speech and confusion. The accused accompanied the officer to the police vehicle at 9:54 p.m. 18 Officer Lockyer recorded in her notes that she made breathalyzer demand on the accused while he sat in the back of her vehicle at 9:58 p.m. At this time, the officer read the accused his rights and warnings. 19 After the accused was read his warnings, the officer testified that the accused asked numerous times about what was going to happen next, what was going to happen to his truck, and consistently expressed his confusion with the events that were unfolding. 20 The officer left the scene with the accused at 10:04 p.m. to drive to the Esterhazy Detachment, which was about five kilometres away. Sgt. Ian Skinner 21 He was at the Esterhazy Detachment when the accused arrived with Officer Lockyer at 10:10 p.m. When the accused stepped out of the police vehicle, Sgt. Skinner inquired of the accused how things were going. The accused reported to the sergeant that he was confused as to why he was at the police station. The sergeant made the observation that he had alcohol on his breath. He also noted that the accused walked slowly but without stumbling. He further noted that the accused had flushed face and his eyes were glassy. Sgt. Skinner formed the opinion that the accused had consumed fair amount of alcohol and supported Cst. Lockyer’s theory that the accused was in confused state. 22 At the detachment, the accused asserted his right to counsel, and provided number from card in his wallet to his lawyer in Regina. After unsuccessful attempts to reach this lawyer, either at work or home, the police attempted to reach Legal Aid, on behalf of the accused. After the sixth attempt, Legal Aid was on the line and the accused had ten minute conversation with the lawyer. 23 At the detachment, the accused was cooperative, although still confused and growing more agitated. He continued to ask what was going to happen to his truck. 24 Breath tests were conducted and the Certificate of Analysis was tendered as evidence for identification purposes, subject to any ruling on the Charter issue. The readings were 110 mg/% and 100 mg/%. [5] On this appeal, the Crown argued that the learned trial judge relied on irrelevant evidence and failed to consider other more relevant evidence. Some of these factual issues will be dealt with later in my analysis of the learned trial judge’s decision by reference to the transcript of the evidence heard at the trial. Suffice it to say that the learned trial judge did not question the credibility of either of the officers. [6] The statutory law touching on matters in issue before the learned trial judge and on this appeal are found in ss. 253, 254 and 258(1)(a) and (c) of the Criminal Code, the relevant portions of which read is as follows: 253. Every one commits an offence who operates motor vehicle or has the care or control of motor vehicle whether it is in motion or not, (a) while the person’s ability to operate the vehicle, is impaired by alcohol or drug; or (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. 254.(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 (a) where it is proved that the accused occupied the seat or position ordinarily occupied by person who operates motor vehicle, the accused shall be deemed to have had the care or control of the vehicle, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, in motion (c) where samples of the breath of the accused have been taken pursuant to demand made under subsection 254(3), if (i) [Not in force] (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; THE DECISION UNDER APPEAL [7] It was the position of defence counsel at the trial that Cst. Lockyer lacked the requisite grounds for demanding breath sample under s. 254(3) of Criminal Code. The learned trial judge was aware that an analysis of the reasonable and probable grounds entailed both subjective and an objective component, and she quoted the following passage from the Supreme Court of Canada in R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] S.C.R. 254, 95 C.C.C. (3d) 193, at para. 48 The Criminal Code provides that where police officer believes on reasonable and probable grounds that person has committed an offence pursuant to s. 253 of the Code, the police officer may demand breathalyzer. The existence of reasonable and probable grounds entails both an objective and subjective component. That is, s. 254(3) of the Code requires that the police officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief: R. v. Callaghan, 1974 CanLII 962 (SK QB), [1974] W.W.R. 70 (Sask. Dist. Ct.); R. v. Belnavis, [1993] O.J. No. 637 (Gen. Div.) (QL); R. v. Richard (1993), 1993 CanLII 8567 (ON SC), 12 O.R. (3d) 260 (Prov. Div.); and see also R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.R. 241, regarding the requirements for reasonable and probable grounds in the context of an arrest. [8] The learned trial judge also referred to the Saskatchewan Court of Appeal decision of R. v. Shepherd, 2007 SKCA 29 (CanLII), [2007] W.W.R. 659, and specifically to the definition of reasonable and probable grounds adopted by Sherstobitoff J.A. at para 5: concise definition of reasonable and probable cause is found in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] S.C.R. 170 at p. 193: Reasonable and probable cause has been defined as “an honest belief in the guilt of the accused based upon full conviction, founded on reasonable grounds, of the existence of state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed” (Hicks v. Faulkner (1878), Q.B.D. 167, at p. 171, Hawkins J.) This test contains both subjective and objective element. There must be both actual belief on the part of the prosecutor and that belief must be reasonable in the circumstances. The existence of reasonable and probable cause is matter for the judge to decide as opposed to the jury. She also noted that Sherstobitoff J.A. had applied this standard to the reasonable and probable grounds required for an officer to make demand for breath samples under s. 254 of the Criminal Code when he stated, at para. of his decision: In R. v. Storrey, 1990 CanLII 125 (SCC), [1990] S.C.R. 241, the Supreme Court made the point, at p. 251, that “the police need not demonstrate anything more than reasonable and probable grounds. Specifically, they are not required to establish prima facie case for conviction before making the arrest.” Although the court was interpreting s. 450(1) of the Criminal Code, R.S.C. 1970, c. C-34 which sets out the police authority for arrest without warrant, the principle is applicable to this case. [9] The learned trial judge thereafter commented that the circumstances existing at the time the demand was made must be examined to determine whether the demand was reasonable. She stated, at para. 29 The appropriate time for determining whether the demand was reasonable is at the time the demand was made. The Court must consider as question of fact what information was available to the peace officer such that the officer could form both the honest belief that the accused was impaired and the objective grounds to move from suspicion to objective belief. In determining the validity of the belief, the Court must consider the totality of the circumstances surrounding the demand. [10] The learned trial judge proceeded to categorize certain indicia of impairment observed by Cst. Lockyer as capable of founding “grounds of suspicion only”. She stated, at para. 30 The observations of the arresting officer upon which the officer formed reasonable and probable grounds that he was impaired include the typical indicia of impairment associated with the forming of suspicion of impairment. These included the glassy and red eyes, the smell of alcohol on the breath, stumbling and slurred speech. Generally, these alone are grounds for suspicion only, and absent some other form of objective evidence, would not be sufficient to ground demand. (R. v. Ukrainetz, 2006 SKPC 102 (CanLII); R. v. Hicks, 2008 SKPC 15 (CanLII); R. v. Hagley [Unreported decision of Benison J., Prov. Ct. at Estevan, April 28, 2008]; R. v. Sperle, 2004 SKQB 382 (CanLII) as cited in Ukrainetz, supra.) [11] After commenting that the arresting officer is entitled to consider the circumstance as whole and need not prove prima facie case, the learned trial judge thereafter proceeded to inquire about other indicia of impairment which were not present, or which might be explained. Some of these related to Mr. Knoedler’s driving actions, his notable lack of swaying or other difficulties, his willingness to co-operate, and his volunteering that he had consumed alcohol some hours earlier. This is how she analysed these issues, at paras. 32 The officer made no note of improper driving, when initially observing the pickup truck driven by the accused, nor when in pursuit of the pickup. But for the U-turn, which was, although illegal, explained as part of the act of returning to the community of Gerald where he could reorient himself towards Weyburn, no unusual driving was observed. The accused was noted as pulling over normally when approached from behind by the police vehicle. 33 The officer noted no other swaying or difficulty in the short observation period of about three minutes from the time of the stop to the time of the arrest and demand. The accused was cooperative and gave up the keys to his vehicle upon request by the officer. He volunteered that he had consumed alcohol, with his last drink some hours earlier. The accused displayed signs of confusion and was unable to locate his documentation in the truck despite extensive searching. 34 Erratic driving has generally been adopted in impaired driving cases as indicia of impairment. None was demonstrated in this case. No evidence was tendered that the accused had difficulty walking, or getting in and out of vehicles. The accused was described as wearing muddy rubber boots and dirty clothing, which could account for his slow gait. 35 In Hagley, there was testimony of the accused’s capacity to understand and answer questions, capacity to move in and out of vehicles without difficulty, of polite and cooperative behaviour throughout the process. As well, the Court found an absence of evidence of erratic driving and finding of moderate odour of alcohol on the breath. On these grounds, Benison J. found the contradictory evidence available to the police officer in forming the objective grounds for the demand sufficient to require additional objective information, such as would be provided through roadside screening test. 36 The issue of contradictory evidence was addressed in another Saskatchewan Court in R. v. Ukrainetz, where Green J. found significant contradictory evidence could defeat the objective test. In Ukrainetz, Green J. found on the facts nothing remarkable about the manner of driving of the accused. [12] Without further analysis, the learned trial judge concluded that while she found that Cst. Lockyer had subjective belief that Mr. Knoedler was impaired, she found an absence of objective grounds sufficient for making breathalyzer demand. She thereafter decided that the absence of reasonable and probable grounds constituted an unreasonable search and seizure contrary to s. of the Charter and excluded evidence of the results of the breath tests as product of an unlawful demand. [13] Counsel for the Crown has suggested that the learned trial judge failed to give due consideration to other indicia of impairment revealed in the evidence of Cst. Lockyer which amply fulfil the objective grounds for the demand. Among these she notes that the learned trial judge fails to take into account that Cst. Lockyer had initially observed two vehicles approach the intersection of Highways 80 and 22 east of the Town of Esterhazy. Cst. Lockyer pursued the vehicle that continued northbound on Highway 80 and the other vehicle, pick-up truck with quad (an all-terrain vehicle), turned right at the intersection onto Highway 22 proceeding toward the Village of Gerald. Cst. Lockyer stopped and checked the northbound vehicle and then returned to the intersection. This had taken about 10 minutes. As she approached the intersection from the north she observed pickup truck with quad in the back travelling westbound toward the same intersection. She suspected it was the same vehicle that she had previously observed turn right onto Highway 22. Cst. Lockyer testified that the vehicle abruptly made U-turn just before reaching the stop sign at the intersection to again proceed eastbound. She considered this U-turn to be illegal because there was solid line there. She decided to check this vehicle. She turned left off of Highway 80, activated her emergency lights, and the pick-up truck pulled over onto the shoulder and stopped. [14] Cst. Lockyer testified that there were two factors which may have alerted the driver of the westbound vehicle that police vehicle was approaching from the north on highway 80. These were non-functioning headlamp on her vehicle which the driver of the pick-up truck could have noticed as he turned right onto Highway 22 and she turned left from her parked position to pursue the vehicle northbound on Highway 80. The other was the reflective material on the side of the marked police cruiser she was operating which would have been visible to the westbound driver as they both approached the intersection at approximately the same time. [15] As was noted by the learned trial judge, Mr. Knoedler immediately exited his vehicle and asked Cst. Lockyer, “Where’s Gerald?” Cst. Lockyer understood this to mean that he was inquiring where the Village of Gerald was located. Cst. Lockyer was aware that the Village of Gerald was about 20 kms east on Highway 22 and two kms north. Cst. Lockyer also learned from Mr. Knoedler while he was searching for documents in his vehicle that he had been at quad derby in Gerald that day, which was consistent with the quad in the truck box. She also learned that he was attempting to find his way home to Weyburn. [16] Mr. Knoedler’s explanation that he intended to drive from Esterhazy back to Gerald in order to get his bearings and find his way home from there is not logical. While the officer agreed in cross-examination that an inference could be drawn that he was lost, she also stated that it was another factor that indicated to her that he may have been impaired. Mr. Knoedler was coming from Gerald, he had been in Gerald all day, he was on the highway heading to Gerald and yet he claimed he could not find Gerald. To Cst. Lockyer and any other reasonable person familiar with the relative positions of Gerald, Esterhazy and Weyburn on map of South East Saskatchewan, it makes no sense to drive easterly from Esterhazy some 20 kms only to find your bearings if your destination is Weyburn. The shortest route from Esterhazy to Weyburn is to proceed westerly to Stockholm and to drive south from there on Highway to Highway 13 at Carlyle which then takes you directly to Weyburn to the west. In my opinion the learned trial judge should have considered Mr. Knoedler’s driving actions, including the illegal U-turn, as objective evidence of erratic driving. [17] Counsel for the Crown also suggests that the learned trial judge failed to give sufficient consideration to other observations made by Cst. Lockyer given her training and experience. Cst. Lockyer testified that she had been an RCMP officer for 10 years. Apart from basic training, which does include training in officer/violator contact and detecting impaired driver symptoms, she was also qualified breathalyzer technician. At the time of this incident, she was posted to Yorkton Regional Traffic Services as one of 51 dedicated traffic enforcement officers in the Province of Saskatchewan doing only traffic enforcement with their priority being the detection and prosecution of impaired drivers. This is what she was doing on the night in question. She had been at this posting for more than three years. [18] Cst. Lockyer testified about number of other indicators of possible impaired driving in relation to her contact with Mr. Knoedler. One of these was the fact that Mr. Knoedler exited his truck as soon as it came to stop and started walking toward her vehicle. She testified that this is done because the driver has something to hide in the vehicle and, in her experience, it is commonly done by drinking and impaired drivers. She was not saying that only drinking drivers do that, but most of the people who do that are people that have been drinking. [19] Cst. Lockyer also testified that she stood by Mr. Knoedler’s open driver door for about three minutes while he searched for his driver’s licence and the vehicle registration. At that time she noticed an odour of alcohol coming out of the truck and she asked him if he had just swished with mouthwash because she could smell mint in the air. Mr. Knoedler told her that he had put some mints in his mouth. He then retrieved pack of Mentos mints from somewhere in the vehicle and he handed them to her. She stated that as the conversation went on she could detect an odour of liquor on his breath as well as the mints. She testified that mints and mouthwash are often used to mask the odour of liquor on person’s breath. Mr. Knoedler admitted that he had been consuming alcohol few hours earlier. [20] Cst. Lockyer testified that after conversing with Mr. Knoedler for five minutes or so at the door of his vehicle, she was of the opinion that he was showing signs of impairment and she concluded that his ability to drive motor vehicle was impaired by alcohol. She said that she consciously determined that she would not do an approved roadside screening device demand on Mr. Knoedler. She stated that she would make an ASD demand if she suspected driver had alcohol in his body but otherwise did not display sufficient signs of impairment to ground breathalyzer demand. In this case she decided that Mr. Knoedler’s ability to drive was impaired by alcohol based on the fact that he had lost his balance and stumbled into his own truck after she had ordered him to return to his vehicle; that his speech was slurred at times; that he had an odour of alcohol on his breath; and that he was confused as indicated by his inability to orient himself. [21] Counsel for the Crown submits that the learned trial judge erred in attempting to balance the observations of the police officer which tended to indicate that Mr. Knoedler was impaired by juxtaposing them against other observations which would indicate normalcy. For instance, at para. 32 of the learned trial judge’s decision quoted above, she stated that Cst. Lockyer did not note any improper driving when she first saw the pickup truck, nor when she pursued it and it pulled over to stop. She said that the U-turn, while illegal, was explained as part of the act of returning to Gerald in order to re-orient himself. agree that these otherwise normal driving actions do not negate the otherwise illegal U-turn or the police officer’s suspicion that the driver saw her marked police vehicle and turned into the opposite direction to avoid being stopped. At para. 33 of her decision, the learned trial judge stated that the officer noted no other swaying or difficulty in the short observation period of about three minutes from the time of the stop to the time of the demand. The evidence was that Mr. Knoedler stumbled and fell shoulder first into his truck as he turned around. Thereafter, Mr. Knoedler sat in his vehicle with the door open and his left leg out while he unsuccessfully searched for his driver’s licence and registration. This is not position from which swaying would normally be observed. The fact that he was co-operative does not negate impairment by alcohol. While being uncooperative may indicate being under the influence of alcohol, not everyone who is under the influence of alcohol becomes uncooperative. agree with counsel for the Crown that these otherwise neutral observations do not negate the otherwise observable symptoms of stumbling and confusion and having difficulty locating documents. [23] Counsel for the Crown submitted that while the trial judge should analyse the observations made by the officer up to the time of demand to determine if the officer’s belief was objectively reasonable, it is permissible for the trial judge to take into consideration other evidence which might contradict the officer’s observations. However, observations such as those mentioned in para. 34 that there was no evidence that Mr. Knoedler had difficulty walking or getting in and out of vehicles does not contradict Cst. Lockyer’s observation of Mr. Knoedler stumbling and falling shoulder first into his truck. It appears that the learned trial judge was referring to Cst. Lockyer’s admission in cross-examination that, other than the stumble, she did not notice any other problems with balance or swaying, and to the evidence of Sgt. Skinner to the effect that at the police detachment in Esterhazy he noted that Mr. Knoedler walked slowly, without stumbling, and at pace slower than Cst. Lockyer. [24] agree with counsel for the Crown that these neutral observations do not constitute contradictory evidence. In addition, find the learned trial judge’s comment that wearing muddy rubber boots and dirty clothing could account for his slow gait to be speculative, especially since there was no evidence from either police officer that Mr. Knoedler’s boots were muddy. In any event, the learned trial judge failed to consider Sgt. Skinner’s observation that in his experience persons who have ingested alcohol may walk slowly in order to compensate for the effect of the alcohol. [25] As mentioned previously, the Bernshaw decision sets forth the proposition that there is both subjective and an objective component to establishing reasonable and probable grounds. This means that the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, and there must be reasonable grounds for this belief (Bernshaw at para. 48). In this case, the learned trial judge was satisfied that Cst. Lockyer had subjective belief that Mr. Knoedler was intoxicated. The issue before me is whether Cst. Lockyer’s subjective belief was reasonable in the circumstances. In R. v. Shepherd, 2009 SCC 35 (CanLII), [2009] S.C.R. 527, 331 Sask. R. 306, the Supreme Court of Canada affirmed (at para. 20) that while the existence of reasonable and probable grounds is grounded in factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is question of law. Therefore, while the trial judge’s factual findings are entitled to deference, the trial judge’s ultimate ruling is subject to review on appeal for correctness. [26] It is useful at this point to reiterate that in order to prove that an accused person’s ability to operate motor vehicle was impaired by alcohol, it is not necessary to prove marked departure from normal behaviour. If the degree of impairment establishes any degree of impairment ranging from slight to great, the offence is made out: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380, 18 C.R. (4th) 127 (Ont. C.A.), affirmed 1994 CanLII 94 (SCC), [1994] S.C.R. 478, 90 C.C.C. (3d) 160. [27] Before convicting an accused of impaired driving, the trial judge must be satisfied beyond reasonable doubt that the accused’s ability to operate motor vehicle was impaired by alcohol or drug. However, s. 254(3) of the Criminal Code only requires that peace officer have reasonable grounds to believe that person has committed the offence of impaired driving or driving while over .08. As was stated by MacDonald J.A. of the Saskatchewan Court of Appeal in R. v. Carlton (1981), 1981 CanLII 2085 (SK CA), 12 Sask.R. 84, [1981] S.J. No. 1192 (Q.L.), in an appeal on charge of refusal to comply with demand for breathalyzer test, the law does not require that in reaching such conclusion the officer must be persuaded beyond reasonable doubt that the offence had in fact been committed. MacDonald J.A. in that case approved of the observation made by the trial judge that reasonable grounds means such grounds as would lead any fairly cautious man to conclude that the person charged is probably guilty of the crime imputed. [28] In R. v. Gavin (1993), 1993 CanLII 1978 (PE SCAD), 50 M.V.R. (2d) 302, [1993] P.E.I.J. No. 136 (Q.L.), the Prince Edward Island Supreme Court Appeal Division described the reasonable and probable grounds for belief required by the peace officer making demand under s. 254(3) in the following terms at para. 7: police officer must have reasonable and probable grounds for his belief before s-s. 254(3) authorizes him to make demand for breath samples. This condition precedent guards against arbitrary and precipitous demands. That is why, prior to making demand, the officer must do such investigation or receive such information as the circumstances require to enable him to properly form belief that will justify s-s. 254(3) demand. To satisfy the test of having done so, the data the officer relies on at the time he makes his demand, when taken as whole, must have sufficient objective persuasiveness as would lead reasonable person similarly situated to conclude that more likely than not the accused had, within the preceding two hours, as result of alcohol consumption committed an offence under s. 253. [Emphasis added.] [29] In her decision, the learned trial judge listed what she described as “typical indicia of impairment” observed by Cst. Lockyer, including glassy and red eyes, the smell of alcohol on the breath, stumbling and slurred speech. She determined, however, that “these alone are grounds for suspicion only”. She suggested that absent some other form of objective evidence, these indicia would not be sufficient to ground demand. In my respectful opinion, the learned trial judge failed to consider the totality of the circumstances in determining whether Cst. Lockyer had reasonable and probable grounds to make the breath demand. Other indicia which the learned trial judge overlooked or down-played include: The officer’s suspicion that in making full U-turn prior to reaching the intersection Mr. Knoedler was attempting to evade the approaching police vehicle; The U-turn within 100 metres of the intersection of two provincial highways was an unlawful manoeuvre which constituted some evidence of erratic driving; Mr. Knoedler’s excuse for making the U-turn does not justify making this illegal manoeuvre; Mr. Knoedler’s explanation that after spending the day in Gerald he was trying to return to Gerald from Esterhazy in order to re-orient himself so that he could find his way home to Weyburn defies logic; Being lost may be result of being impaired; Mr. Knoedler immediately exited from his vehicle and walked toward the police car—conduct which Cst. Lockyer described as typical for drivers who are drinking or impaired; Mr. Knoedler’s use of mints which Cst. Lockyer explained is something people do to mask the odour of liquor on their breath; Mr. Knoedler admitted to consuming alcohol hours earlier, yet still had the smell of alcohol on his breath; Mr. Knoedler consistently expressed confusion about events as they were unfolding—which is also consistent with impairment by alcohol; Cst. Lockyer was herself qualified breathalyzer technician and for the past three years was dedicated traffic enforcement officer tasked with detecting and prosecuting impaired drivers; Cst. Lockyer’s training and experience led her to the conclusion that in these circumstances an ASD demand was inappropriate given that she honestly believed, based on her observations at the roadside and after placing Mr. Knoedler in the police car, that his ability to operate vehicle was impaired by alcohol and that she had reasonable and probable grounds to make breathalyzer demand; Cst. Skinner’s observation that at the police detachment Mr. Knoedler walked slowly and without stumbling does not contradict the fact that on the highway he stumbled and fell shoulder first into his truck; There was evidence that Mr. Knoedler was wearing big boots but no evidence that his boots were muddy or that this accounted for his slow gait; Being co-operative is not necessarily an indication of being sober. [30] With respect, I am of the view that the learned trial judge erred in finding that Cst. Lockyer’s subjective belief of impairment was not supported on the facts. Taking into consideration the totality of circumstances conclude that Cst. Lockyer had reasonable grounds to make the breath demand. The law does not require the officer to have anything more than reasonable and probable grounds to believe that the driver committed the offence of impaired driving or driving while over .08 before making the demand. The officer need not demonstrate prima facie case for conviction before pursuing his or her investigation (Shepherd, SCC at para. 23). In my view, there was ample evidence to support Cst. Lockyer’s subjective belief that Mr. Knoedler had committed an offence under s. 253 of the Criminal Code. [31] Having concluded that Cst. Lockyer had reasonable and probable grounds to make the breathalyzer demand, also conclude that Mr. Knoedler’s Charter claims must fail. The Certificate of Analyses filed as Exhibit P-1 at the trial will be admitted as a full exhibit and will become part of the Crown’s case. DISPOSITION [32] The authority for the bringing of this appeal against conviction to this Court is found in ss. 812(1)(d) and 813(b)(i) of the Criminal Code. Section 822(1) states that where an appeal is taken under s. 813 in respect of conviction, ss. 683 to 689 apply, subject to certain exceptions which are inapplicable here. The relevant portions of s. 686(4) provide for the following in the case of successful Crown appeal against acquittal: 686. (4) If an appeal is from an acquittal ... the court of appeal may (a) dismiss the appeal; or (b) allow the appeal, set aside the verdict and (i) order new trial, or (ii) enter verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose sentence that is warranted in law. [33] Since the appeal has been allowed, the options are to order new trial or to enter verdict of guilty in respect of the charge of driving while over .08. In this case, I find that the Crown has proved each and every element of the charge of driving while over .08 beyond a reasonable doubt. [34] The evidence of Cst. Lockyer establishes the Mr. Knoedler was operating motor vehicle on Highway 22 in the Esterhazy District in the Province of Saskatchewan on October 27, 2007, at approximately 9:50 p.m. After observing and speaking to Mr. Knoedler for approximately five minutes, Cst. Lockyer arrested Mr. Knoedler for impaired driving and made demand for breath samples at approximately 9:58 p.m. [35] Mr. Knoedler was taken to the Esterhazy RCMP detachment where he supplied two samples of his breath at 10:49 p.m. and 11:10 p.m. into an approved instrument which resulted in readings were 110 and 100 milligrams of alcohol in 100 millilitres of blood, respectively. The demand for breath samples was made in accordance with the provisions of s. 254 of the Criminal Code and the samples were provided as soon as practicable after the time when the offence was alleged to have been committed and not later than two hours after that time. Therefore, evidence of the results of the analyses so made is, pursuant to s. 258(1)(c) of the Criminal Code, conclusive proof that the concentration of alcohol in Mr. Knoedler’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was the lowest of the concentrations determined by the analyses, which was 100 milligrams in 100 millilitres of blood. [36] There are no issues with regard to any breach of Charter rights. Mr. Knoedler was not unlawfully detained; he was advised of the reason for his arrest; he was advised that he need not say anything; and he was given an early opportunity to consult counsel. It has been established on this appeal that Cst. Lockyer had reasonable and probable grounds to make the breathalyzer demand. The Charter application was made on the basis of the evidence of the Crown witnesses at trial—not in the course of voir dire. Mr. Knoedler, through his counsel, elected not to call any evidence in the trial. Both the Crown and the defence closed their case and the learned trial judge rendered decision in respect of the Charter application as well as both charges in the information. [37] In the circumstances, I allow the Crown’s appeal, set aside the verdict of acquittal on the charge of operating a motor vehicle while over .08 and enter a verdict of guilty with respect to the offence of operating a motor vehicle while over .08 under s. 253(b) and 255(1) of the Criminal Code, being Count No. 1 on Information No. 24312600. [38] The learned trial judge’s verdict of acquittal on charge of driving while impaired under s. 253(a) and 255(1) of the Criminal Code, being Count No. on Information No. 24312600, continues to stand as it was not appealed. [39] Subsection 686(4)(b)(ii) referred to above provides that upon entering verdict of guilty the court of appeal may pass sentence or remit the matter to the trial court and direct that the trial court impose sentence that is warranted in law. In this case, since the learned trial judge has retired, elect to have this Court impose sentence. Since Mr. Knoedler may not be residing in Saskatchewan at the present time, am prepared to postpone sentencing for up to 90 days during which time counsel for the Crown and counsel for Mr. Knoedler must arrange for date for sentencing hearing before myself at the Judicial Centre of Yorkton. The sentencing may occur at any other Judicial Centre which may be more convenient to counsel and Mr. Knoedler upon consultation with the local registrar in Yorkton. [40] will remain seized with this matter until sentencing has occurred. In the event that sentencing hearing has not been held or commenced within 90 days, bench warrant will issue for the arrest of Mr. Knoedler in order to compel his attendance before this Court. J. G. A. Chicoine

The Crown appealed the respondent's acquittal on a charge of driving over .08. The Crown alleged that the trial judge erred in law by excluding two breath samples taken following the respondent's arrest on the basis that they were obtained in violation of s. 8 of the Charter of Rights. During trial, the defence gave verbal notice of a Charter issue but did not elect to seek a voir dire or called any evidence in support of the Charter application and did not call any witnesses for the defence. HELD: The Crown's appeal was granted and a verdict of guilty to driving over .08 was entered. The Court elected to impose sentence and remained seized with the matter. The trial judge failed to consider the totality of the circumstances in determining whether the officer had reasonable and probable grounds to make a breath demand. The trial judge erred in finding the officer's subjective belief in impairment was not supported by the facts. The Certificate of Analysis was admitted as a full exhibit and became part of the Crown's case. The Crown had proven the offence beyond a reasonable doubt in all respects.

2_2011skqb102.txt

J. Q.B. A.D. 1996 No. 704 J.C.P.A. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF PRINCE ALBERT BETWEEN: ZELMA LEE KORPESS and SASKATCHEWAN GOVERNMENT INSURANCE RESPONDENT M. D. Popescul, Q.C. for the applicant N. B. Fisher for the respondent JUDGMENT ROTHERY J. December 9, 1996 The applicant, Zelma Korpess, is the survivingspouse of Roy Korpess, who died in a motor vehicleaccident. Any benefits she is entitled to receive are in accordance with The Automobile Accident Insurance Act, as amended by The Automobile Accident Insurance Amendment Act, 1994, S.S.1994, c. 34. She received adeath benefit for herself and for her two children. Because she took issue with the calculation of theamount paid, her counsel applied for a review of thedecision as provided by the Act. The review by therespondent, Saskatchewan Government Insurance ("SGI"),gave the same results. Her counsel appealed thatdecision to the Court of Queen\'s Bench. THE ISSUE The essence of Korpess' application is that SGI has not correctly interpreted the provisions of the Act for calculating the death benefit that should be paid to her as surviving spouse. She takes no issue with the calculation of the payment to her for the dependent children. SGI has calculated the payment based on percentage of her late husband's net income rather than on his gross income. She argues that she has received benefit less than the Act contemplates. Oppositely, SGI contends that it is entitled to calculate the payment to the surviving spouse on the basis of the deceased's net income. The method of calculating as defined by the Regulations simply clarifies that the income is based upon actual earnings of the deceased. SGI is not required to calculate any other form of income that might otherwise be payable to victim, such as deemed income for students who are unable to earn an income. Once the actual earnings are determined, net income is calculated. Then, the surviving spouse receives death benefit equal to 50% of that net income. The divergence of opinion by counsel as to themeaning of the death benefit provisions in the Actstems from disagreement on whether the "weekly incomereplacement benefit" referred to in Division 5 of theAct is a different statutory creature than the "incomereplacement benefit" in Division 4. Counsel for Korpess sees the phrases as having separate and distinct meanings. Counsel for SGI argues that the benefit is calculated as determined by the formula in Division 4, being the victim's income replacement benefit. But, one of the figures used in the Division formula is derived from the calculation as stipulated by s. 146(1) in Division and Regulation 33. The language used in the Act for calculating the benefit payable to surviving spouse for dependent children causes special problems. Both counsel agree that the interpretation suggested by SGI is appropriate when calculating the benefit for dependent children. That may not be correct supposition. Careful analysis of the legislation is required. THE LEGISLATION These are the pertinent sections of the Act. In Division entitled Death Benefits, the legislation 146(1) Subject to subsections (3) to (5), surviving spouse is entitled to death benefit calculated in accordance with the following formula: DB (50% IRB) where: DB is the death benefit payable; and IRB is the weekly income replacement benefit that the deceased victim would have been entitled to arising out of the accident if the victim had survived the (2) The death benefit payable pursuant to subsection (1) is payable until the date that the surviving spouse dies. (3) The minimum death benefit payment that surviving spouse is entitled to receive pursuant to subsection (1) is $45,000. (4) For the purposes of subsection (3), the insurer shall capitalize, in accordance with the regulations, the surviving spouse's death benefit pursuant to subsection (1). (5) Where, at the time of the accident, there are children who were dependent on the surviving spouse and who were dependants of the victim, the surviving spouse is entitled to an additional benefit in the amount calculated in accordance with the following formula: (5% IRB) DC where: is the benefit payable; IRB is the weekly income replacement benefit that the deceased victim would have been entitled to arising out of the accident if the victim had survived the accident; and DC is the number of the victim's dependent 148(1) surviving spouse who is entitled to benefit pursuant to section 146 may elect to have the benefit capitalized and paid out as lump sum. Regulation 33 of The Personal Injury Benefits Regulations, c. A-35, Reg. 3, states: 33 In the definition of IRB in subsection 146(1) of the Act, the phrase "the weekly income replacement benefit that the deceased victim would have been entitled to arising out of the accident" means the weekly income replacement benefit the deceased victim would have been entitled to calculated on the basis of the gross yearly employment income that the deceased victim earned from his or her employment at the time of the accident. Section 100(1) of Part VIII of the Act states that: In this Part: (n) "income replacement benefit" means an income replacement benefit payable pursuant to Division 4. In Division 4, entitled Income Replacement Benefits, the relevant sections of the legislation are: 136(1) Subject to the other provisions of this Division, the amount of an income replacement benefit that victim is entitled to pursuant to this Division is equal to 90% of the victim's net income, calculated on yearly basis. 137(1) victim's net income is equal to the amount calculated in accordance with the following where: NI is the victim's net income; GYEI is the lesser of the victim's gross yearly employment income and the maximum yearly insurable earnings; and is an amount calculated by the insurer in accordance with this section and the regulations for income tax pursuant to The Income Tax Act and the Income Tax Act (Canada), premiums pursuant to the Unemployment Insurance Act (Canada) and contributions pursuant to the Canada Pension Plan. 138(1) The amount of the maximum yearly insurable earnings for 1995 is $50,000. (2) The amount of the maximum yearly insurable earning for 1996 and each year after 1996 is the amount calculated in accordance with the following formula: MYIE $50,000 IAWY/IAW95 In Division 9, entitled Payment of Benefits, the Act provides: 177(1) Subject to subsections (2) to (4), the insurer shall pay an income replacement benefit to the person entitled to it once every 14 days. THE SURVIVING SPOUSE'S DEATH BENEFIT How ss. 146 and 136 of the Act are interpreted make considerable difference. On SGI's understanding of the legislation, it calculated that the late Mr. Korpess' gross yearly employment income was $51,343. (The material filed in this application does not specify whether that amount is the actual earnings or the maximum yearly insurable earnings as calculated by s. 138.) SGI then calculated the deceased's net income by deducting the amounts that would have been deducted at source for income tax, Canada Pension Plan and unemployment insurance premiums. This net income was $34,854.62. Translated to weekly net amount, the sum is $670.28. Section 136(1) states that 90% of this amount is the "income replacement benefit". That benefit is $603.25 per week, and that is the amount that SGI divided in half, as instructed by s. 146(1), to constitute the death benefit payable to Mrs. Korpess. SGI states that Mrs. Korpess is entitled to $301.63 per week, payable every 14 days, or lump sum of $336,211.45. To arrive at this calculation, SGI equated the acronym "IRB" in s. 146(1) with the defined phrase "income replacement benefit" in s. 136(1). Counsel for Korpess submits that this is incorrect. The IRB is not the income replacement benefit, but benefit calculated in accordance with the specific provisions as set out in s. 146(1) and Regulation 33. The result is that the death benefit is 50% of the deceased's actual gross yearly employment income that he earned prior to death. must agree. Statutory interpretation requires that legislation be given fair, large and liberal construction to best assure the attainment of its objects (The Interpretation Act, 1995, c. I-11.2, s.10). It also requires that definitions in statute apply to the entire statute unless contrary intention appears in the statute, and the definitions apply to regulations made under an act, except to the extent that contrary intention appears in the regulations (The Interpretation Act, s.13). In this Act, death benefit is provided for surviving spouse of victim killed in motor vehicle accident. All other rights of action are barred (ss. 100 (1)(d) and 102). Thus, an interpretation that bestows the best benefit on the surviving spouse is to be preferred if any ambiguity in the legislation exists. That would assure the attainment of the objects of this Act. But, am not required to determine the meaning of the Act on this basis. The legislation is clear on its wording. First, the phrase "income replacement benefit" used in s. 136(1) is not analogous to the IRB in s. 146(1). Section 136(1) defines the "income replacement benefit" to be the amount that victim is entitled to pursuant "to this Division" (that is, Division 4). IRB is defined in Division as "weekly income replacement benefit ." As allowed by s. 217(1)(a) of the Act, the IRB is further defined in Regulation 33 to mean that which is "calculated on the basis of the gross yearly employment income that the deceased earned from his or her employment at the time of the accident" (emphasis added). "Gross yearly employment income" is defined in s. 135 of the Act, but that is only for the purposes of s.136-138. As allowed by s. 217(1)(j), Regulations 20 and 21 define what is to be considered in calculating the sum of the salary, wages or self-employed income for the purpose of obtaining the victim's "gross yearly employment income". Regulations 20 and 21 also provide the basis of the calculation to be made for the "gross yearly employment income" in Regulation 33. From that, the IRB is calculated, and the death benefit is 50% of the IRB. There is no requirement to use the formula in s.136(1) to calculate the surviving spouse\'s deathbenefit. Section 146(1) is a self-contained formula. If the statute wanted the formula of s. 136(1) used for calculating death benefit, it could have stated as much. Instead, it created specifically defined term for the purposes of s.146. must assume the statute meant something different when it defined an income replacement benefit in s.136 and an IRB in s.146. The difference is that the death benefit is 50% if the victim's gross yearly employment income. Section 146 does not contain any provisions for setting maximum yearly employment income the same way that limit is stipulated in ss. 137-138. The calculation of GYEI in s. 137(1) sets maximum for calculating the victim's net income. Because the Actis silent on this limit in Division 5, I must concludethat the actual income earned, without any limitingmaximum, is the sum that is used to determine the IRBin s. 146(1). That the IRB is not the same as the "income replacement benefit" is also evident from the provisions of the Act that define the pay periods. Section 177(1) requires SGI to pay an "income replacement benefit" once every 14 days, subject to certain exceptions. On the other hand, the death benefit is derived from "weekly income replacement benefit". While the amount may be capitalized and paid out in lump sum, death benefit is simply that. It is not the victim's income replacement benefit, but something payable to the surviving spouse calculated on specific formula. The death benefit is one-half the"weekly income replacement benefit". The ordinarymeaning of this is that the payment is made to thesurviving spouse on a weekly basis. (Sullivan, R. Driedger on the Construction of Statutes (3rd), Butterworths (1994: Toronto), pp. 26 28). THE SURVIVING SPOUSE'S BENEFIT FOR DEPENDENTS Regulation 33 defines the IRB in subsection 146(1) of the Act. It does not define the IRB in s.146(5) that calculates the death benefit payable to surviving spouse for dependent children. Counsel for both parties agree that the calculation of the benefit payable to the surviving spouse for dependent children must be as stipulated in s. 136(1), that is, 5% of 90% of the victim's net income times the number of dependent children. Counsel support this position on the basis that Regulation 33 does not define the IRB in s. 146(5) as it does in s. 146(1). Thus, the only income replacement benefit that the Act could refer to is that as provided by s. 136. They conclude that, for the purposes of interpreting s.146(5), IRB is the same as "income replacement benefit". cannot agree with counsel. It is unnecessary to refer to s. 136(1) of the Act to calculate the death benefit payable to the surviving spouse for dependent children. Section 146 is complete within itself. Section 146(1) defines the IRB. Once that calculation is made, which must be done,( because the death benefit for dependent children is an additional benefit the surviving spouse is entitled to), the same IRB calculation is used for the formula specified in s. 146(5). There is no need to search elsewhere in the Act for the formula. While it may be unusual that Regulation 33 did not define the IRB for s.146(5) as well as for s. 146(1) of the Act, cannot construe s. 146(5) in the manner suggested by counsel. To do so would create an unnecessary inconsistency within s. 146 itself. Therefore, the preferable interpretation is the one that allows for s. 146 to work as unit. The IRB ascalculated in ss. 146(5) is the same as the IRB for inss. 146(1). CONCLUSION It is hereby ordered that SGI\'s decision is setaside. SGI is directed to recalculate and pay Mrs.Korpess the death benefit to her as a surviving spouseand for her two dependent children in accordance withthe directions of this court. Although I am entitled to award interest on thebenefits not paid (ss.198(4)), I grant the partiesleave to bring that matter back for further argument,if required.

The surviving spouse of the insured deceased, who died in a motor vehicle accident, took issue with the calculation of the death benefit paid for herself and her two children which had been reviewed and approved by SGI. At issue was whether the weekly income replacement benefit referred to in Division 5 of the Act had a separate and distinct meaning from the income replacement benefit in Division 4. HELD: SGI's decision was set aside and SGI was directed to recalculate and pay the death benefit to the surviving spouse and dependent children in accordance with the directions of the court. 1)The Interpretation Act requires legislation be given a fair, large and liberal construction to best assure the attainment of its objectives and that definitions given apply to the entire statute and regulations unless a contrary intention appears in the statute or regulations. 2)The phrase income replacement benefit (IRB) used in s136(1) is not analogous to the IRB in s146(1). There is no requirement to use the formula in s136(1) to calculate the surviving spouse's death benefit. S146(1) is a self-contained formula. 3)Because the Act is silent on a maximum yearly employment income the actual income earned is the sum that is used to determine the IRB in s146(1). The ordinary meaning of a death benefit being one-half the weekly IRB is that the payment is made on a weekly basis. 4)The IRB as calculated in s146(5) is the same as the IRB in s 146(1). 5)Leave was granted for the parties to bring the matter back, if required, with respect to the interest on benefits not paid.

9_1996canlii6888.txt

E. J. Gunn QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 266 Date: 2007 07 26 Docket: F.L.D. 129/2007 Judicial Centre: Saskatoon, Family Law Division BETWEEN: DENISE RAE FRANSON (formerly TRIBBLE) and BRUCE HARRY FRANSON Counsel: Ms. Carla L. Haaf for the petitioner Ms. Tiffany M. Paulsen for the respondent FIAT WILSON J. July 26, 2007 [1] This matter was before me in Chambers on July 20, 2007. On that date made number of orders regarding child support as well as an order regarding summer access. The remaining issues to be resolved are as follows: 1) What, if any, should the father pay to the mother for extraordinary expenses relating to tutoring for one or both children? 2) What, if any, retroactive support should be ordered in this matter? 3) What, if any, interim spousal support should be payable by the father to the mother? [2] Dealing firstly with the issue of extraordinary expenses for education, the mother’s evidence discloses that both children, but more particularly Kody, born October 6, 1998, is in need of specialized educational program given his current problems at school. The mother proposes that Kody be registered in the Sylvan Learning Centre, during the summer of 2007, due to Kody’s educational difficulties. According to the mother, Kody is eight years old and is just now learning his alphabet and his numbers. [3] The mother has provided the court with letter from Pat Nostbakken, learning disabilities classroom teacher at the Westmount Community School where Kody attends. According to Ms. Nostbakken, Kody is currently in the half-time program for students with learning disabilities. Ms. Nostbakken states that it would be very beneficial for Kody to participate in some form of summer camp or learning support program, over the summer, to help him with his present learning difficulties. [4] The father is not opposed to Kody receiving some additional educational assistance. However, the father believes the Sylvan Learning Centre program is too expensive and says that he wishes to speak to teachers in the fall about other programming. The father did not provide any evidence, at the hearing of this matter, regarding any possible educational programs for the summer of 2007. It is clear the father has taken no steps to research alternatives to the Sylvan program. [5] agree with the father that the Sylvan Learning Centre fees are significant. As set out in the mother’s affidavit, for one child, for 12 week program, with initial testing and consultation, the cost would be $1,261.00. For both children, the total cost would be $2,522.00. The mother proposes that Zachary also attend Sylvan Learning Centre because he has ADHD. In my view, the mother has not filed enough evidence regarding Zachary’s circumstances. cannot, thus, make decision regarding any extraordinary expenses for Zachary’s special needs. [6] The mother’s claim for the father’s assistance is made pursuant to s. 7(1)(d) of the Federal Child Support Guidelines [SOR/97-175, as am.] (the “Guidelines”). Section 7(1)(d) reads as follows: 7(1) In child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation: (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs; [7] I am satisfied on the evidence before me that the expense in question is a necessary expense for Kody. The real issue is whether the father has the means to contribute to this expense given the child support I have ordered him to pay pursuant to my fiat of July 20, 2007. [8] My July 20, 2007 fiat includes monthly s. payment for the four children in the sum of $843.00 per month, as well as contribution by the father for the children’s daycare costs. have ordered the father to pay an amount equal to 71% of the net after tax childcare cost. [9] In order to determine whether the father has the means to contribute to the Sylvan Learning Centre fees have estimated that the mother’s childcare costs will be the approximate sum of $650.00 per month, although it is clear on the evidence that her costs may reach figure of $1,950.00 per month. [10] Utilizing the Childview program, with childcare costs of $7,800.00 per year, Sylvan Learning Centre costs for Kody for the summer of 2007 at $1,261.00, income for the father at $37,900.00 and the mother at $13,085.00, it appears that the father’s share of both childcare costs and Sylvan Learning Centre costs would equate to the sum of $472.00 per month. If the father paid this amount, in addition to his s. child support amount, the father’s total child support payment would be $1,315.00 per month, until Sylvan fees are paid in full. The father would have net monthly cash flow remaining in the sum of $1,066.00 while the mother, and four children, would have available cash flow in the sum of $2,700.00 per month. [11] Although I recognize the father will be stretched, I believe that the Sylvan Learning Centre expenses are necessary and reasonable. The father shall pay to the mother his proportionate share of the Sylvan Learning Centre expense being an amount equal to 71% of the total cost. [12] Turning now to the question of retroactive child support, the mother seeks retroactive support for the time period from February, 2006 to February, 2007. Both the mother and father acknowledge that the father did commence making reasonable child support payments as of February, 2007. [13] am not, on this interim application, prepared to make retroactive child support order. There is significant conflict on the evidence regarding the payment of loans by the father during this period of time and the issue of whether or not the mother refused to accept payments being offered by the father. If the mother wishes to pursue the issue of retroactive support she may do so when and if this matter proceeds further to pre-trial. [14] Finally, the mother requests interim spousal support. Although it is clear from the evidence that the mother has an entitlement to interim spousal support, the father does not have the ability to pay. am directed by s. 15.3(1) of the Divorce Act, R.S.C. 1985, c. (2nd Supp.) to give priority to child support in determining child and spousal support applications. In the matter before me, find am unable to make spousal support order because the father does not have necessary resources to pay monthly sum to the mother once he has satisfied his child support obligations. My determination of this matter, at this interim stage, should not affect the right of the mother to pursue spousal support in the future. [15] Although the father has been voluntarily providing child support to the mother, at least since February, 2007, the mother was required to bring this motion to obtain an appropriate sharing of s. expenses. The father shall pay costs in the sum of $400.00 forthwith. J. D.L. Wilson

FIAT: The primary issue is whether the father should pay for tutoring expenses. HELD: 1) The father is not opposed to Kody receiving some additional educational assistance. However, he believes that the Sylvan Learning Center is too expensive. The father did not present any evidence with regard to other possible educational programs for the summer. It is clear that he has not researched alternatives to the Sylvan program. On the evidence, the expense is necessary for Kody. The real issue is whether the father has the means to contribute given his child support payments. If the father pays $472 per month for the Sylvan program, in addition to his s. 3 child support payments, the father's total child support payable would be $1,315 per month. The father would have a net monthly cash flow in the sum of $1,066 while the mother with four children would have available cash flow in the sum of $2,700 per month. Although the father will be stretched, the Sylvan program is necessary and reasonable. 2) Although the mother has an entitlement to spousal support, the father does not have the ability to pay. 3) The father shall pay costs in the sum of $400.

d_2007skqb266.txt

nan QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 549 Date: 20051223 Docket: Q.B.G. No. 239/2005 Judicial Centre: Saskatoon BETWEEN: MARGARET FEHR, and DONALD BEVERIDGE, CAROLYN BEVERIDGE and PEAK ENTERPRISES INC. Defendants Appearances: Brian J. Scherman, Q.C. for the plaintiff (applicant) Donald Beveridge for the defendants (respondents) JUDGMENT ALLBRIGHT J. December 23, 2005 [1] On February 8, 2005, the plaintiff commenced an action against the defendants seeking various items of specific relief and costs on solicitor‑client basis. Thereafter, the plaintiff brought notice of motion dated February 8, 2005, seeking from the Court an order that the defendants provide an accounting in relation to specified items. On February 22, 2005, Hunter J. made an order directing that the defendants, Donald Beveridge, Carolyn Beveridge and Peak Enterprises Inc., provide to the plaintiff and to the Court within seven days an accounting in respect of all funds or property received from, held on behalf of or invested on behalf of Margaret Fehr. This order was consented to by counsel for the defendants. [2] The defendants filed statement of defence on March 7, 2005, and in paragraph thereof pled the following: 8. The Defendants deny that Peak has any obligation to redeem the Plaintiff’s preferred shares, as asked for by the Plaintiff in paragraph 38 of the Statement of Claim, or that the Beveridges have any obligation to the Plaintiff in relation to the payment of dividends or the redemption of shares. [3] The plaintiff then brought notice of motion returnable in Chambers on July 19, 2005, seeking the following relief: 1. An order pursuant to Rule 129 and 133 of The Queen’s Bench Rules of Court, for an order granting the Plaintiff, Margaret Fehr (“Fehr”), summary judgment against the Defendant, Peak Enterprises Inc. (“Peak”), as follows: (a) Judgment in the amount of $214,600.00 plus interest at rate of 16% per annum from March 6, 2005 to the date of judgment. [4] In response to the plaintiff’s motion, the defendant, Donald Beveridge, filed an affidavit, and on July 19, 2005, the Court directed that Mr. Scherman would be allowed to cross‑examine Mr. Beveridge on his affidavit, and the Court further ordered that the defendant, Donald Beveridge, was to bring with him to the discovery process “all financial information and documentation, including income tax returns and assessments for Peak Enterprises Inc. and Ascent Financial Services Ltd.” [5] This cross‑examination on the affidavit proceeded, and the matter has now been brought back before the Court with an amended notice of motion seeking the original relief plus additional relief. The amended notice of motion also seeks an order pursuant to Rules 217, 173(e) and the inherent jurisdiction of the Court striking the statement of defence of all the defendants. To that end, the plaintiff asserts number of grounds as the basis for making such an order. In addition, the plaintiff seeks an order removing the affidavit of Donald Beveridge, sworn July 15, 2005, in its entirety from the action, and seeks costs of the application and the cross‑examination of the defendant, Donald Beveridge on solicitor‑and‑client basis. The defendants, in turn, request that an amendment be granted to their statement of defence allowing them to plead that Peak Enterprises Inc. was at all relevant times prohibited from redeeming preferred shares (as sought by the plaintiff), under s. 34(2) of The Business Corporations Act, R.S.S. 1978, c. B‑10. The defendants contend that if the amendment is granted to their statement of defence, the judgment requested by the plaintiff simply could not issue by virtue of the wording of the relevant statutory provision. [6] The plaintiff, in support of her application, relies upon copy of the transcript of the cross‑examination conducted by Mr. Scherman of Donald Beveridge on Friday, July 22, 2005, as well as copies of various exhibits identified on that cross‑examination. It is the position of the plaintiff that Donald Beveridge did not produce the documents that he was ordered to by the Court’s fiat and that he has failed to comply with any of the undertakings which he provided on the cross‑examination. The plaintiff further points to the purported failure of the defendants through that cross‑examination to provide any financial information for Ascent Financial Services Ltd. for the fiscal year ending June 30, 2005, and the plaintiff further contends that the only financial statement produced for Peak Enterprises Inc. were unaudited financial statements for the years ending May 31, 2002 and 2003. In addition, the plaintiff suggests that no income tax returns for either corporation were produced as required by the Court’s direction. Finally, the plaintiff points to the fact that in the interim, there has been no response to the undertakings which were given on the occasion of the cross‑examination. At that time, the defendants were represented by counsel, although that is no longer the case. [7] Cumulatively, what the plaintiff now seeks is an order that the affidavit of Donald Beveridge dated July 15, 2005, be struck, that the application for leave to amend the statement of defence be dismissed, that summary judgment be granted against Peak Enterprises Inc., that the defences of each of the defendants be struck out by reason of their failure to comply with their obligations, including failure to make production of documents, and that solicitor‑and‑client costs be awarded against the defendant, Donald Beveridge for the cross‑examination and the application, in any event of the cause. [8] As noted, the defendants opposed each of these requests on the basis that they are inappropriate in light of the overall context of the litigation. Mr. Beveridge also points to the fact that the defendants have been involved in prolonged litigation in another matter, and have been so involved for over seven years. This matter has recently gone to trial, and the parties are awaiting judgment. Mr. Beveridge observes that the legal costs of this other case have hampered the ability of the defendants to pay dividends to the plaintiff. It is also the position of the defendants through Mr. Beveridge that his affidavit of July 15, 2005, remains valid. At the heart of the defendants’ position is the assertion that Peak Enterprises Inc.’s only asset is its holding in the corporation Ascent Financial Services Ltd. Peak Enterprises Inc. is the sole shareholder of Ascent Financial Services Ltd. and accordingly, Peak Enterprises Inc.’s principal asset is its interest in Ascent. The defendants suggest that Ascent Financial Services Ltd. has no cash and has significant debt and outstanding legal bills. It is the position of the defendants that they should be given leave to amend their statement of defence to additionally include the following amendments: 8. If Peak were to make the payment to redeem the preferred shares there would be reasonable grounds for believing that after the payment either: (a) Peak would be unable to pay its liabilities as they fall due; or (b) the realizable value of Peak’s assets would be less than the aggregate of its liabilities and the amount that would be required to be paid to other shareholders who have right to be paid on redemption or in liquidation, rateably with or in priority to the Plaintiff. 9. Peak is therefore prohibited by subsection 34(2) of The Business Corporation [sic] Act (Saskatchewan) from making any payments to redeem the Plaintiff’s preferred shares. Background facts [9] The affidavit of Donald Beveridge, sworn on July 15, 2005, and upon which the defendants continue to rely, provides in part as follows: 1. am one of the defendants in this action and an officer and director of the defendant Peak Enterprises Inc. (“Peak”).... 2. hold 51 Class “A” common voting shares in the capital stock of Peak. My wife, Carolyn Beveridge (“Carolyn”), also defendant in this action, owns 49 Class “A” common voting shares in the capital stock of Peak. 3. The plaintiff, Margaret Fehr (the “Plaintiff”), is the holder of 214,600 Class “E” preferred shares (the “Preferred Shares”) in the capital stock of Peak. 4. There are no other shareholders in the capital stock of Peak and none that would have right to be paid on redemption or in liquidation, rateably with or prior to the Plaintiff as holder of the Preferred Shares. 5. The Plaintiff has asked that Peak redeem the Preferred Shares for the principal amount of $214,600.00. Peak has not redeemed the Preferred Shares. The Plaintiff claims the amount of $214,600.00 in her statement of claim. 6. If Peak redeems the Preferred Shares, there is good reason to believe and believe that after the payment of $214,600.00, Peak will not be able to meet its liabilities as they fall due and the realizable value of Peak’s assets will be less than its liabilities.... 8. Peak is currently the sole shareholder of Ascent Financial Services Ltd. (“Ascent”). Peak’s principal asset is its interest in Ascent. Ascent operates financial services business. believe that if Peak were to dispose of its interest in Ascent today, the proceeds of any such disposition would likely be minimal. 9. reason for this is that both Peak and Ascent are involved in an action with, among others, Arthur Blythman and Anna Blythman (the “Blythmans”) and their company, Artanna Investments Ltd. (“Artanna”) ... (the “Blythman Lawsuit”). 10. The Blythman Lawsuit arises as result of series of transactions commencing with the incorporation of Ascent in 1997. Upon the organization of Ascent, each of the Blythmans were issued 25 Class “A” shares and Peak was issued 50 Class “A” shares in Ascent. 11. By written agreement (the “Goodwill Sale Agreement”) made October 7, 1997, Ascent purchased from the Blythmans the good will, among other assets of financial services business, owned by the Blythmans for total purchase price of $600,000.00.... 12. By written agreement (the “Share Purchase Agreement”) made effective October 15, 1998, Peak purchased the Blythman’s Ascent Shares ... for stated purchase price of $559,000 and the agreement to retire the promissory note issued to Arthur Blythman in the amount of $23,000 as partial consideration paid to him in the Goodwill Sale Agreement.... 15. In 1999, Ascent and Peak commenced the Blythman Lawsuit against the Blythmans and Artanna, amongst others. 16. Subsequently, when payments on the Loan started to become due, Ascent refused to make payments on the Loan. The Blythmans and Artanna recently commenced an action for repayment of the Loan. Peak does not have possession of any share certificates in Ascent and, to the best of my knowledge and belief, the Escrowed Shares in Ascent are still being held in escrow pursuant to the Share Purchase Agreement. 17. In light of the Blythman Lawsuit, the Escrowed Shares in Ascent still being held in escrow, and the claim by the Blythmans and Artanna for the repayment of the Loan, if Peak were to dispose of its shares in Ascent today, believe Ascent would realize very little value for those shares. Thus, while the Draft Financial Statements show that Peak has investments of $619,050, that amount is the cost of those investments, almost the entire amount of which constitutes the shares in Ascent. believe that today’s realizable value of the substantial bulk of those investments is minimal. 18. There is therefore good reason to believe and believe that if Peak were to redeem the Preferred Shares, after the payment of the sum of $214,600, Peak would be unable to pay its liabilities as they became due and the realizable value of Peak’s assets would be less than its liabilities. Finally, it is my belief that if Peak were required to redeem the Purchased Shares, it would be in contravention of the solvency tests set out in sub‑section 34(2) of The Business Corporations Act. [10] There is no dispute between the parties as to the nature of the plaintiff’s investment in the defendant corporation. The real issue between the parties is whether the plaintiff is entitled to the summary relief which she now seeks. [11] It is the position of the plaintiff that the cross‑examination of the defendant, Donald Beveridge, on his affidavit discloses that Peak Enterprises Inc. is profitable company and that s. 34(2) does not provide any defence to the defendants against the requested relief sought. [12] The parties are in disagreement, however, over the issue of the amount of dividend payments which have been made by Peak Enterprises Inc. to the plaintiff pursuant to her investment in the company. The plaintiff takes the position that she has been paid in total the limited sum of $8,500.00 towards such dividends. Counsel for the plaintiff asserted this amount as part of his presentation to the Court on the hearing of the motion. Subsequent to that motion, Mr. Beveridge forwarded to the Court’s attention letter in which he writes: In response to Mr. Sherman’s [sic] assertion that only small portion of the dividends have been paid to date, wish to submit the following schedule of dividend payments in the amount of $88,836.00 made to Mrs. Fehr. As of July 15, 2005 we had sent to Mr. Sherman [sic] photocopies and color scans of each cheque front and back as evidence that Mrs. Fehr had cashed them. We also invited Mr. Sherman [sic] to the office of Robertson Stromberg Pedersen to examine the original cheques if he could not be satisfied with the authenticity of the color photocopies. As of August 4, 2005 we had sent to Mr. Sherman [sic] financial statements and income tax records for Peak and Ascent from 1997 to 2004. Attached to Mr. Beveridge’s letter is separate page headed “Schedule of Dividend Payments,” which chronicles payments from the year 2001 through 2005 totalling $88,836.00. [13] In light of the essence of the dispute between the parties, the issue of what dividends have or have not been paid remains to be resolved between the parties. In this instance, the issue to be determined is whether the plaintiff is entitled to the relief sought and, most particularly, whether she is entitled to summary judgment against the defendant, Peak Enterprises Inc. for the principal amount of her investment in the company. [14] From the conflicting material before me on the matter of the payment of dividends, in any event, would be unable to conclude what had or had not been paid without further submissions and inquiries. Relevant provisions of The Business Corporations Act, supra [15] Section 34(2) of The Business Corporations Act provides: (2) corporation shall not make any payment to purchase or redeem any redeemable shares issued by it if there are reasonable grounds for believing that: (a) the corporation is, or would after the payment be, unable to pay its liabilities as they become due; or (b) the realizable value of the corporation’s assets would after the payment be less than the aggregate of: (i) its liabilities; and (ii) the amount that would be required to pay the holders of shares that have right to be paid, on redemption or in liquidation, rateably with or prior to the holders of the shares to be purchased or redeemed. [16] turn firstly to the question of whether the defendants should be granted leave to amend their statement of defence in the fashion set out earlier herein. am of the view that there is no impediment or justification for not allowing the amendment to proceed, and accordingly do so. The more pertinent question then becomes as to what, if any, application does s. 34(2) of The Business Corporations Act, supra, have in relation to the plaintiff’s application for summary judgment. In considering this matter, am in agreement with the position espoused by the plaintiff. To that end, I observe that the plaintiff’s motion does not require Peak Enterprises Inc. to “make any payment to purchase” or to “redeem any redeemable shares.” Rather, the plaintiff’s application is one seeking summary judgment. The corporate defendant is not making payment to redeem shares, in essence, but rather, following judgment however and whenever obtained, it would be subject to the normal judgment process, including execution. Such execution or enforcement of judgment is not tantamount to redemption of shares. [17] On December 23, 2004, the plaintiff provided notice in writing to Peak Enterprises Inc. that she wished to redeem all of her Class “E” preferred shares effective in March 2005. The principal amount of her Class “E” preferred shares is $214,600. It is this amount which she seeks as the substance of her summary judgment. In considering all of the material before me, there is no dispute as to the plaintiff’s entitlement under appropriate circumstances to redeem the Class “E” preferred shares for the face value. [18] I am of the view that s. 34(2) of the Act does not serve to prevent the plaintiff seeking summary judgment from the Court. The effect of granting a judgment, if it is otherwise appropriate to do so, does not place the corporation in a position of breaching the prohibitions contained in s. 34(2). [19] In the event that this interpretation is wrong, it is also necessary to examine the question of whether there are reasonable grounds for believing that the corporation is or would be insolvent as required by s. 34(2) of the Act if summary judgment were to be granted in favour of the plaintiff. The plaintiff has requested that the affidavit of Donald Beveridge be struck, and accordingly, there would be no evidence before the Court to suggest any grounds for believing that the corporation is or would be insolvent. have considered the matter of Mr. Beveridge’s affidavit, and am of the view that it would not be appropriate to strike the affidavit, and to that end, the Court has broad discretion. The resulting question then is whether the affidavit of Donald Beveridge, which has been referred to earlier herein, provides basis for demonstrating that there are reasonable grounds for believing that the corporation Peak Enterprises Inc. is or would be insolvent as required by s. 34(2) of The Business Corporations Act, supra. In this regard, am also in agreement with the position put forth by the plaintiff. In considering all of the material filed on this application, including the cross‑examination of Mr. Beveridge on his affidavit, I am not satisfied that the defendants have demonstrated on a balance of probabilities that there is real insolvency on the part of Peak Enterprises Inc. To that end, I am also mindful of the failure of the defendants to provide responses to the undertakings following from the cross‑examination process which occurred on July 22, 2005. Further, the defendants have not provided any professional analysis or affidavit evidence in support of their proposition that s. 34(2) is applicable. Where the defendants, and particularly Peak Enterprises Inc., have failed to present reasonable grounds for believing that the corporation is or would be unable to pay its liabilities as they become due or otherwise, s. 34(2) of The Business Corporations Act, supra, is not applicable in considering the plaintiff’s application for summary judgment. [20] That then leaves for resolution the final question of whether the plaintiff is otherwise entitled to summary judgment against Peak Enterprises Inc. [21] The plaintiff’s application for summary judgment was brought under Rules 129 and 133 of The Queen’s Bench Rules. Rule 129(1) provides: 129(1) Where the action is brought to recover debt or liquidated demand and the defendant, or one or more of the defendants if there are several defendants, has or have defended, the plaintiff may on affidavit, made by himself or by any other person who can swear positively to the facts, or if the plaintiff is corporation by any officer or servant or other person who can swear positively to the facts, verifying the cause of action and the amount claimed as due, and stating in the belief of the deponent that there is no defence to the action on the merits, apply to the court for leave to enter final judgment for the amount of the claim or the amount so verified as due to the plaintiff (not exceeding the amount of the claim) together with interest (if any) and costs. Rule 133 provides: 133(1) If it appears that the defence set up by the defendant applies only to part of the plaintiff’s claim, or that any part of the claim is admitted, the plaintiff shall immediately have judgment for that part of the claim that the defence does not apply to, or that is admitted. (2) The court may direct judgment under subrule (1) to be subject to any terms as to suspending execution, payment into court, assessment of costs, or otherwise, that the court considers appropriate. (3) The court may allow the defendant to defend as to the remainder of the plaintiff’s claim. [22] In addition Rule 134 is relevant and provides: 134 If it appears to the court that any defendant has good defence to, or ought to bepermitted to defend the action, and that any other defendant has not such defence and ought not to be permitted to defend, the former may be permitted to defend, and the plaintiff shall be entitled to enter final judgment against the latter, and may issue execution upon such judgment without prejudice to his right to proceed with his action against the former. [23] In considering the plaintiff’s application under Rule 129, the plaintiff refers to the affidavit of Margaret Fehr sworn on June 29, 2005. In that affidavit, in part, the plaintiff deposes to the following: 2. On or about March 6, 2000, signed Subscription Agreement dated March 6, 2000 ... whereby subscribed for 185,000 Class “E” Preferred Shares of the defendant corporation, Peak Enterprises Inc. (“Peak”). Peak issued 185,000 Class “E” Preferred Shares to me at stated purchase price of $185,000.00.... 3. Pursuant to the Subscription Agreement, Peak was to pay me dividend of $0.16 per share, per annum (the “Dividends”). 4. On March 6, 2001, was entitled to Dividends in the amount of $29,600.00. At about that time, the Defendant, Donald Beveridge (“Don Beveridge”) told me that he and the Defendant, Carolyn Beveridge, could not pay me the Dividends at that time but that could have additional shares in Peak in that amount. 5. On or about March 6, 2001, subscribed for an additional 29,600 Class “E” Preferred Shares of Peak. signed another Subscription Agreement dated March 6, 2001 (the “Second Subscription Agreement”) in which Peak agreed to pay me an annual dividend of $0.16 per share.... 6. The Articles of Incorporation of Peak ... provide as follows with respect to Class “E” Shares: (b) the Class “E” Shares shall be redeemable by the Corporation either at its option or at the option of the holder for an amount equal to the amount for which each share was issued, together with an amount equal to all declared and unpaid dividends. 7. On or about December 23, 2004, my lawyer gave notice in writing to Peak and the Beveridges that, as of March 6, 2005, would be redeeming all of my Class “E” Preferred Shares in Peak and that expected to be paid the entire principal amount in the amount of $214,600.00 and the balance of dividends thereon on that date.... 8. have not been paid the principal amount of my Class “E” Preferred Shares in the amount of $214,600.00. 9. With respect to the Dividends, it is not clear how much is owed to me by Peak and the Beveridges. In or about March, 2001, the Beveridges had agreed to pay me the Dividends on monthly basis at rate of $2,500.00 per month, with final payment of $6,836.00 in the twelfth month so that would be paid total dividend of $34,336.00 per year. 10. acknowledge receiving certain payments from the Beveridges between March of 2001 up to the current date. These are set out in my Affidavit of February 7, 2005. In addition, since the date of that Affidavit, have received three monthly payments in the amount of $1,000.00 each. 11. However, the Beveridges maintain that they have made additional payments to me that have not yet been able to verify. Although the Beveridges provided copies of cheques that they allege are additional Dividend payments to me (the “Cancelled Cheques”), the copies of the Cancelled Cheques are, in many cases, not legible. On many of the Cancelled Cheques, the front is visible and shows that the cheque was made out to me but the back of the cheque, which would contain the information as to whether and where the cheque was deposited is not legible.... 12. My lawyer requested production of the original cancelled cheques so that we can determine whether the cheques were in fact negotiated by me.... [B]ut the original cheques or other supporting documentation for the alleged payments have not yet been provided.... 13. Because it is not clear how much am owed by Peak by way of Dividends, am not asking this Honourable Court to grant summary judgment in relation to my claim for the payment of the Dividends. am only asking this Honourable Court to grant summary judgment against Peak for the redemption amount of my Class “E” Preferred Shares in Peak, being $214,600.00. intend to pursue my claim for the unpaid Dividends against Peak in conjunction with my claim against the Beveridges. 14. make this Affidavit in support of an application for summary judgment against Peak in the amount of $214,600.00. [24] The amount sought to be recovered by the plaintiff in my view does represent debt or liquidated demand as that phrase is contemplated in Rule 129. Further, the affidavit of the plaintiff deposes positively to the facts in question, verifies the cause of action and the amount claimed as due. While the plaintiff does not specifically depose that there is no defence to the action on the merits, that is the fair interpretation to be placed on the overall tenor of her affidavit. Accordingly, conclude that it is her belief that there is no defence to her action available to the defendant Peak Enterprises Inc. [25] Aside from the plaintiff’s assertions, it is necessary to examine all of the facts and materials. am in agreement with the plaintiff’s contention that the defendant Peak Enterprises Inc. really does not dispute the assertion of the plaintiff relating to the structure of the preferred shares purchased by her and sought to be redeemed by her. In effect, the defendant Peak Enterprises Inc. has contended that it would be inappropriate for the company to redeem the shares in light of s. 34(2) of The Business Corporations Act, supra. For the reasons which have earlier stated, have concluded that this legislative provision has no impact on the application and, accordingly, is not an impediment or bar to the plaintiff’s application for summary judgment. [26] In considering the plaintiff’s application under Rule 129, am also mindful of the provisions of Rule 133. [27] For the reasons have set forth, am satisfied that there is no merit to the defendants’ denial in paragraph of the original statement of defence that the corporation has any obligation to redeem the plaintiff’s preferred shares as asserted by the plaintiff in the statement of claim. [28] In conclusion on this issue, I am satisfied that the plaintiff has demonstrated an entitlement to summary judgment pursuant to Rule 129 against the defendant Peak Enterprises Inc. for the sum of $214,600.00. Further, the plaintiff is entitled to interest in accordance with the Share Agreement at the rate of 16 percent from March 6, 2005, and the plaintiff shall have judgment for this principal amount and interest against the defendant Peak Enterprises Inc. [29] I am not, however, satisfied that the plaintiff has demonstrated an appropriate basis for summary judgment to be granted against the defendants Donald Beveridge and Carolyn Beveridge personally, and accordingly I decline to order such. The causes of action brought against the defendants, Donald Beveridge and Carolyn Beveridge, have been responded to in the statement of defence, and their statements of defence on the face raise litigible issue. [30] The plaintiff also contends that the statement of defence as it relates to Donald Beveridge and Carolyn Beveridge personally should be dismissed in light of the failure to respond to the undertakings given by Donald Beveridge on July 22, 2005. note that the undertakings were provided only by Donald Beveridge and not Carolyn Beveridge. It is appropriate for these undertakings to be responded to, and accordingly, direct that Donald Beveridge is to reply to all of the undertakings made by him on July 22, 2005, on or before the 31st day of March, 2006. In considering this time line, am mindful of the fact that Mr. Beveridge indicated in his oral comments to the Court at the time of the hearing of the application that his focus had been strongly upon the other lawsuit, and this had prevented him from addressing his mind to these undertakings. Bearing that in mind, am satisfied that this window of time is more than ample to enable these undertakings to be responded to. If there is failure to respond to these undertakings in an appropriate way by March 31, 2006, the plaintiff has leave to return the matter to me for consideration of the application to strike out the statement of defence of Donald Beveridge. In the event the undertakings are complied with, the matter will proceed in the normal course. [31] have considered the matter of costs as requested by the plaintiff, and am satisfied that the plaintiff is entitled to her costs of the application and of the cross‑examination on July 22, 2005. The plaintiff seeks solicitor‑and‑client costs in this regard; however, the plaintiff has not provided an indication of the approximate amount of such solicitor‑and‑client costs such as would enable the Court to assess whether an award of solicitor‑and‑client costs would be appropriate. In the absence of this information, am of the view that the appropriate award of costs to the plaintiff is that the plaintiff receive costs in an amount of double Column in Schedule “B”, being the tariff of costs in the Court of Queen’s Bench. This order as to costs is made pursuant Rule 545(3)(e). This order for costs is made against the defendant Peak Enterprises Inc., and such costs are to be payable by the defendant Peak Enterprises Inc. forthwith upon the assessment thereof by the Local Registrar. J. G.N. Allbright

There is no dispute between the parties as to the nature of the plaintiff's investment in the defendant corporation. The real issue between the parties is whether the plaintiff is entitled to the summary relief, which she now seeks pursuant to Rules 129 and 133 of The Queen's Bench Rules. It is the position of the plaintiff that the cross- examination of the defendant on his affidavit discloses that the corporation is profitable company and that s. 34(2) of The Business Corporation Act does not provide any defence to the defendants against the requested relief sought. The parties are in disagreement over the issue of the amount of dividend payments that have been made by the corporation to the plaintiff pursuant to her investment in the corporation. HELD: 1) The plaintiff's application for summary judgment does not require the corporation to redeem any redeemable shares. Rather, the plaintiff's application is one seeking summary judgment. The corporate defendant is not making payment to redeem shares, but rather following judgment however and whenever obtained, it would be subject to the normal judgment process, including execution. Such execution or enforcement of judgment is not tantamount to redemption of shares. The plaintiff provided notice in writing to the corporation that she wished to redeem all her Class E preferred shares effective March 2005. The principal amount of her shares is $214,600. It is this amount that she seeks as the substance of her summary judgment. Section 34(2) of the Act does not serve to prevent the plaintiff seeking summary judgment from the court. The effect of granting judgment, if it is otherwise appropriate to do so, does not place the corporation in a position of breaching the prohibitions contained in s. 34(2) of the Act. 2) The defendants have not demonstrated that there is real insolvency on the part of the corporation. The defendants have failed to provide responses to the undertakings. Further, the defendants have not provided any professional analysis or evidence in support of their position that s. 34(2) is applicable. 3) The amount sought to be recovered by the plaintiff does represent debt or liquidated demand as contemplated by Rule 129. The plaintiff is entitled to summary judgment against the defendant corporation for the sum of $214,600 pursuant to Rule 129. Further the plaintiff is entitled to interest at the rate of 16% from March 2005 in accordance with the Share Agreement. 4) The plaintiff has not demonstrated an appropriate basis for summary judgment against the individual defendants. 5) The plaintiff is entitled to costs.

e_2005skqb549.txt

L.W. ZUK REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 167 Date: 2017 06 09 Docket: DIV 154 of 2010 Judicial Centre: Regina (Family Law Division) Appearing: X.M. self-represented Ronald J. Miller for the respondent JUDGMENT BROWN J. JUNE 9, 2017 BACKGROUND [1] This matter arises following a trial in 2012 wherein Justice Kraus found that shared parenting regarding V.M., born March 8, 2005, [V.] should occur on a one week rotation basis (2012 SKQB 130 (CanLII), 395 Sask R 165). Formal issuance of an order slipped through the cracks and thus no judgment was ever taken out. [2] The application now brought by R.M. [R.] is to have formal judgment issued and to vary that decision in favour of her havingprimary residence. In the absence of an order varying the shared parenting order, she seeks a Voices of the Children, (here a Voice of the Child as V. is the only person in issue), report be undertaken in order to ascertain V.’s wishes and thereby gain clarity on his best interests. [3] X.M. [X.] opposes all relief sought by R. [4] For the reasons that follow, I find that it is appropriate to order a Voice of the Child report be prepared regarding V. [5] This variation application is based on an alleged change of circumstances which includes V. expressing desire to live full time with R. If variation is not to be ordered at this time absent the report, R. desires Voice of the Child report be prepared regarding V. Her desire is to enlighten the court regarding his views and his experiences. [6] X. disagrees with R. in all respects, thus the affidavits are conflicting in nature, to put it mildly. It is appropriate to ascertain whether the appropriate order at this time is the commissioning of Voice of the Child report. If so, it ought to then be undertaken prior to ruling on the variation application. The variation is dependent on the report. Voice of the Child Report [7] In R.’s affidavit of April 13, 2017 she states that V. has indicated for some time now (two years) that he would like to reside full time with her and he does not want to continue the week on/week off shared parenting regime. She also attests to V. having seizures and telling her that on one such occasion he was required by X. to continue skiing notwithstanding having seizure. [8] She further says that V. overheard X. telling his roommate he was going to stab R. with needles. She also says V. is not happy taking care of X.’s other boy of six years old when X. has V. in his care. She says V. has heard X. call her “crazy” on more than one occasion. She describes V.’s fear of telling X. he would like not to be in Ukrainian dancing any longer and his preference not to have X. attend his medical appointments, particularly when addressing his seizures. [9] R. desires Voice of the Child report be prepared to independently delve into the issue of V.’s desires and motivations. [10] X. disputes all such allegations and explains each of the events differently as misinterpretations of what was really going on. For example, the “needles” comment was with respect to the possible need, in X.’s opinion, of the hospital staff sedating R. given her screaming and disruptive behaviour. He describes her version of being called “crazy” as being described by him as “unreasonable” but not crazy. [11] X. opposes the securing of Voice of the Child report as he fears it is case of V. calling the shots and that it could negatively affect the shared parenting arrangement currently in place. He relies on D.M. R.W. 2016 SKQB 113 (CanLII) [D.M.] where Justice Megaw declined to order Voices of the Children report based on merely the statement by the father that the children had told him they wanted to live with him. [12] D.M. is distinguishable from this matter. There has not already been one report commissioned for another child in the family here; there has not been pre-trial where the issue was considered and not ordered despite the request; and there are significantly more issues at play here than bald statement by R. that V. has requested he “live full time with her”. As indicated, she avers to: V. saying he had been required by X. to continue skiing notwithstanding seizure; V. overhearing X. telling his roommate he was going to stab R. with needles; V. not being happy taking care of X.’s other boy of six years old when X. has V. in his care; V. hearing X. say R. was “crazy” on more than one occasion; V.’s fear of telling X. he would like not to be in Ukrainian dancing any longer; and, V.’s preference not to have X. at his medical appointments. [13] It is important to note that none of these items in R.’s affidavit are proven. They are simply allegations at this point. However, the allegations are far more extensive than the evidence before Justice Megaw in D.M. [14] As indicated at paras 48 and 49 of G.M. T.M., 2016 SKQB 51 (CanLII): [48] These troubling matters should not be left unaddressed. While T.N. has most appropriately been seeing counsellor, it is also appropriate that her voice be heard by an impartial and professionally trained individual who can advise the court in that regard. [49] T.N. is, by all reports, quite perceptive. In conversation with either of her parents, she will no doubt understand the answer each parent hopes for, even if she is not told this directly. T.N. needs to meet with someone who is not desirous of particular answer to speak to about her own thoughts and wishes regarding the time she would like to spend with each of her parents. [15] Justice Ball put it this way in Knudsen Knudsen, 2013 SKQB 216 (CanLII): 8. The conflicting affidavit evidence filed by mother and father make it clear that Julie’s views are not being reliably communicated to the court. am satisfied that an independent assessment of her wishes with respect to her mother’s proposed move back to Assiniboia and there resumption of shared parenting arrangement will assist the court in deciding this application. [16] also rely on Justice Smith’s decision in Kittelson-Schurr Schurr, 2005 SKQB 90 (CanLII) [Schurr]. [17] X. indicated in argument that V. is an intelligent boy and he does well in school. I find V. is of an appropriate age, being over 12 years old, that he is able to communicate effectively and that a Voice of the Child report would meaningfully assist the court in determining a custody and access plan that is in the best interests of V. [18] X. should take comfort in the fact that the report is prepared by an unbiased and independent professional and also by the fact that, as indicated in Schurr at paras 10 and 11, citing Johns Hinkson (1996), 1996 CanLII 6863 (SK QB), 151 Sask 168 (QB), Voice of the Child report is not determinative of the application. The best interests of V. are still paramount and the wishes of V. are not independently determinative. [19] The report and V.’s views will be assessed for the appropriate weight to accord them given V.’s maturity, experience and age. It will be one piece of evidence that will assist the court in ascertaining what custody and parenting arrangement is in V.’s best interests. In this regard, see also Burka Burka, 2003 SKQB 407 (CanLII), 239 Sask 107 and Thogersen Thogersen, 2010 SKQB 287 (CanLII), 358 Sask 244. [20] therefore order that Voice of the Child report be prepared and submitted to the parties and to the court. [21] The parents are both significantly strapped financially at this time and as such decline to make an order allocating the costs of the report to them. It is to be borne through resources provided to the program aside from the parents. [22] R. and X. are prohibited from discussing the Voice of the Child report process with V. and shall not influence, coach, sway or prompt V. towards any particular views or statements for the purposes of the Voice of the Child report. V. must be left to say what he feels is important, unimpeded by the desires of either parent. [23] This application is therefore to be adjourned sine die returnable not sooner than 14 days after the Voice of the Child report has been received by all parties. ISSUANCE OF THE JUDGMENT [24] The parties have agreed on many of the terms that ought to form the judgment that is formally issued, that matter having not occurred to date. I attach the copy of the judgment with notations that is appropriately issued at this time and I direct its issuance in that form. [25] Costs of these matters will be determined after the Voice of the Child report is made available and the variation matter determined. None will be ordered at this time.

Family Law – Custody and Access – VariationFamily Law – Custody and Access – Voices of the Children Report In 2012, after a trial, it was determined that the child should be parented on a shared basis with a one-week rotation between parents. An order was never issued and therefore, no judgment was taken out. The applicant now applied to have a formal judgment issued, and to vary the decision in favour of her having primary residence. Alternatively, she sought a Voices of the Child report. The applicant indicated that the child expressed a desire to live with her full-time. The parties’ affidavits conflicted as to their behaviour. The applicant indicated that the child told her he was required to continue skiing with the respondent even though he was having a seizure. She also indicated that the child told her that the respondent told his roommate he was going to stab the applicant and he called her crazy. HELD: The court found it appropriate to order a Voices of the Child report. It was determined that the variation application decision was dependent on the report. There were more issues at play than a bald statement by the applicant that the child requested to live with her full-time. The child was an appropriate age for the report, being over 12 years old. He was able to communicate effectively and the report would be meaningful to the court. The order was to be paid for through resources provided to the program. The parties were prohibited from discussing the report process with the child and they were ordered not to influence, coach, sway, or prompt the child towards particular views or statements for the purposes of the report. The application was adjourned sine die returnable not sooner than 14 days after the report was received by all parties. The judgment was directed to be issued.

5_2017skqb167.txt

J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2010 SKQB 264 Date: 2010 07 26 Docket: Q.B.G. 768 of 2008 Judicial Centre: Regina BETWEEN: MICHELLE DUZAN, INDIVIDUALLY, AND CARTER DUZAN, AN INFANT, BY HIS NATURAL MOTHER AND LITIGATION GUARDIAN, MICHELLE DUZAN PLAINTIFFS (RESPONDENTS) and GLAXOSMITHKLINE, INC., AND GLAXOSMITHKLINE UK LIMITED DEFENDANTS (APPLICANTS) Counsel: E.F. Anthony Merchant, Q.C. and Casey Churko for the plaintiffs Robert W. Leurer, Q.C. and Khurrum Awan for the defendants FIAT BALL J. July 26, 2010 [1] The defendants apply for an order setting a date for the hearing of the plaintiffs’ application for an order certifying this action as a class action pursuant to The Class Actions Act, S.S. 2001, c. C-12.01, as am. [2] The background to this litigation is adequately described in the court’s fiat dated August 26, 2009, which established dates for steps to be taken prior to the hearing of the plaintiffs’ motion for certification in October of 2010. The plaintiffs have not met that schedule in that they have failed to deliver their written arguments and authorities by June 30, 2010 as directed. In addition, the plaintiffs have not applied for an order extending the time lines established in the court’s fiat of August 26, 2009, and they have given no indication that they wish to do so. On the hearing of this motion, counsel for the plaintiffs offered no explanation for their failure to meet the prescribed time lines other than to say that “we are talking to people”. [3] Although the time lines established by the court have expired, there will be an order granting leave to the plaintiffs to serve and file an application extending the times within which steps may be taken leading up to the hearing of the plaintiffs’ certification motion. If such an application is made, it shall be:(a) Served and filed on or before August 27, 2010;(b) Made returnable on September 23, 2010 at 10:00 a.m or such other date as may be designated by the court on application by the plaintiffs; and(c) Provide for the hearing of the certification motion to be held on or before February 18, 2011. If the plaintiffs fail to serve and file the application by August 27, 2010, the defendants may apply for an appropriate remedy.

Defendants brought an application for an order setting a date for the plaintiffs' application for certification of the class action. The plaintiffs had failed to meet the litigation schedule by failing to deliver their written arguments and authorities and had not applied for an extension. HELD: The order of the Court established a timeline for the plaintiffs certification application and set a hearing date.

6_2010skqb264.txt

M.D. ACTON QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 407 Date: 2013 11 18 Docket: Q.B. 100/2011 Judicial Centre: Moose Jaw BETWEEN: GOLDENCHILD HOLDINGS LTD. and 101122980 SASKATCHEWAN LTD. Counsel: Robert C. Fielding for the plaintiff Gail D. Wartman for the defendant JUDGMENT KRAUS J. November 18, 2013 [1] The plaintiff, the landlord, claims damages against its tenant, the defendant, asserting negligence by failing to clean, wax and polish the vinyl tile floor in the building, thereby permitting moisture to penetrate between and underneath the tiles resulting in lifting and cracking. The tenant denies responsibility, contending the cause is normal wear and tear or high humidity arising from water entering the building due to inherent structural defects for which the landlord is responsible. The tenant asserts that the landlord breached the lease by failing to repair the roof and by failing to take other remedial measures to prevent water from infiltrating the building, resulting in losses to the tenant’s restaurant operating in the building. The tenant also claims damages for economic interference, alleging the landlord interfered with the sale of its restaurant. [2] Six witnesses testified for the landlord which owns and leases the building to the tenant. The landlord sold the restaurant to the tenant at the time of the lease, retaining the exclusive use of portion of the basement under the lease. [Exhibit PD1, Tab 1, lease between the parties made July 11, 2008] [3] The landlord operated restaurant business within the premises from 2001 until 2008, having converted the premises from its previous use as grocery store; new vinyl tile floor was installed over plywood subfloor in 2001. Mr. Phan, one of the principals of the plaintiff corporation, testified the floor was always clean and described daily floor maintenance of sweeping and mopping, and annual stripping, waxing and polishing. Prior to turning over possession of the restaurant to the tenant on August 1, 2008, the landlord painted the exterior and polished and waxed the floor. Mr. Phan spoke to one or more of the three principals of the defendant corporation, inviting them to observe the stripping, waxing and polishing of the floor but, instead, the tenant expressed its intention to hire floor cleaner to do such work. [4] Water leaked into the building from the roof, damaging ceiling tiles and dripping onto the floor. The tenant placed containers to catch the water coming from the ceiling, closed the restaurant for several days and notified the landlord about the problem. Mr. Phan went to the restaurant in February, 2011, observing water stained ceiling tiles, sagging ceiling tiles (which had not been sagging in 2008) and deterioration of the vinyl floor tiles. He asked the tenant to fix the floor tiles but was told that the problem was caused by movement of the building and by normal wear and tear. During the seven years the landlord operated the restaurant, Mr. Phan described water leakage into the restaurant from the roof and moisture in the basement in the spring although repairs to the roof had been done and the basement was equipped with sump pump. [5] The installer of the original vinyl tile floor was called as witness for the landlord, having been hired by the contractor who had installed the plywood subfloor. Although the installer assumes that the subfloor had been properly installed by the contractor (by affixing plywood with construction adhesive on top of gypcrete), he does not know whether it was so installed. The installer was qualified, by consent, as an expert with respect to the nature of vinyl tile floor coverings with particular reference to the condition and reasons of the floor covering installed on the main floor of the building and the cost of repair. The installer made report on August 12, 2013. [Tabs 12 and 13, PD1] In his opinion, the life expectancy of the vinyl tile floor is 20 years if regularly maintained by polishing and waxing to prevent moisture penetrating between the seams of the tiles which could thereupon swell the plywood subfloor and lift the tiles. The installer added that the floor must be swept regularly to remove dust and debris in order to prevent denigration of the polish. The installer looked at the floor in July 2013, comparing its condition to the photographs taken in 2008. [Tabs 18 and 19, PD1] In his opinion, moisture entered the floor because of insufficient floor polish, causing heaving, separation, chipping and scratching of tiles. In his further opinion, humidity from basement moisture could cause the problem but, if so, it would show up at the edges of the floor, near the walls, and he did not see any such indication. He is of the view that water will run off if the floor is polished. The installer also observed water damage to ceiling tiles in part of the restaurant. [6] Another witness for the landlord has been in the flooring industry for more than 30 years. Although not an expert, he looked at the floor in February, 2013 and concluded that the lifting of the tiles was due to water caused by lack of polish. He estimated the cost to repair the flooring, having been asked by both parties to do so: two areas of the restaurant floor showed reasonable wear and tear but the other two areas were “bad”, his cost estimate to repair the bad areas being $22,281. [7] The property manager of the landlord was retained in April 2011. He received calls from the tenant about water leakage, attended the restaurant and, on several occasions, observed continuous drips of water from the ceiling, being caught in pots and pans. He phoned roofer who solved the problem, after the snow went off the roof. The property manager does not recall the dates. [8] Jing Doh Ling, one of four witnesses who testified for the tenant, is the managing director of the defendant corporation. Persistent water issues in the building came to head in February 2011 when water leakage from the roof through the ceiling onto the floor required their restaurant to be shut down on several occasions; some customers were lost to their business and overhead costs of $1,600 daily continued. The basement floor had lot of water, damaging some of the tenant’s record boxes as well as some wood near the stairs. Mr. Ling admits stripping, waxing and polishing the vinyl floor on only one occasion, in October 2011, within the last five years. He denies receiving any instruction about maintenance of the floor but he admits that he does not know what may have been said to the other two directors. Mr. Ling also admits cleaning the floor in response to the landlord’s notice of March 11, 2011, [At Tab 5, PD1] and acknowledges some of the vinyl floor tiles had lifted. However, he testified that, in the problem areas, lifting was caused by instability of the subfloor due to water and, in other areas, was simply due to normal wear and tear. Mr. Lin also described ceiling tiles along the north wall bunching up at the edge closest to the wall which itself is 3" off plumb. These observations by the tenant are confirmed in the report of the landlord’s consulting engineer dated October 24, 2011 recommending remedial action. [Tab 11, PD1] The tenant had complained about water issues in the past and in 2009, in response, the landlord arranged roof repairs, resolving the tenant’s complaint for awhile, although another roof repair was required in subsequent year. The tenant replaced some floor tiles which present lighter in colour than the older tiles in the photographs. [9] The tenant wishes to sell the restaurant business but must renew the lease to do so. The tenant has given Notice of Intention to Renew the Lease to the landlord. [part of Tab 1, PD1] [10] Mei Lin, another director of the tenant, testified through an interpreter. She had taken off time from her job in Toronto to look at the restaurant, arriving in Moose Jaw on May 8, 2008 and staying for about four days. They purchased the restaurant, effective August 2008, for $168,000 with deposit of $70,000, Ms. Lin, dishwasher, contributing $40,000. She was adamant that she did not receive any instruction from the landlord about waxing and polishing the floors. In the spring following purchase of the restaurant, Ms. Lin saw water coming into the restaurant from the ceiling and water running into the basement. The kitchen was flooded and the restaurant had to close. Now, she wants to sell the restaurant but the circumstances with the landlord have created “bad reputation” for sale. [11] certified property inspector testified for the tenant. He was qualified, by consent, as an expert with regard to the structural soundness of the subject building, and made his inspection report on June 13, 2013 [Tabs 16 and 17, PD1]: the main floor of the restaurant showed signs of penetration by water from the roof; the basement received grade water run off (which should be directed into the street); and, cracks should be sealed to keep water out of the building and resist the freeze/thaw cycle of our climate. He observed wood decay in the basement, denigration of the integrity of concrete blocks and water penetration throughout all three exterior walls. The building has excessive moisture: material samples taken on June 13, 2013, and now, show moisture readings of 66%-99%, compared with standard readings in building material of 17%-19%. The building inspector recommended consultation with flooring contractor for an opinion. [Section 8, Interior, Tab 17, PD1] [12] The final witness for the tenant was qualified, by consent, as an expert in the field of installation and physical properties of floor coverings. [Tab 15, PD1] He inspected the building on two occasions. In his opinion, the subfloor is unstable, causing cracking and gaping of floor tiles. The major cause of the instability is moisture in the basement: he observed standing water in the basement, alkaline and effervescence on the concrete, and dampness under the floor tiles on the main floor above the basement arising from moisture in the basement evaporating to the main floor above. The moisture issue must be resolved before any repair or replacement can be undertaken to the main floor of the restaurant otherwise, it is waste of money. The subfloor has lot of noticeable movement, sponginess being evident when weight is applied. It is unstable and must be rebuilt. He gave an example of vinyl tile floors in schools where, if sealed properly at the outset to prevent invasion of water, floors are cleaned few times each year by flooding. In his experience, vinyl tile floors will last years and years; problems caused by water infiltration are cumulative over time and may take long time to show up. Pooling water in the centre of the basement floor will cause problems evident in areas other than along the walls. While it is not correct that lack of maintenance was the sole cause of the problems with the flooring, he would attribute 25% of the damage to maintenance issues. All structural issues must be rectified before any flooring work can be done. The high humidity in the basement also creates health hazard, black mold being present in the ceiling. PERTINENT PROVISIONS OF THE LEASE 2. a) iv. Repairs and Maintenance That the Lessee, at its sole cost and expense, shall maintain and keep the demised premises in good repair excepting reasonable wear and tear and damage by fire, lightning, tempest, impact of aircraft, acts of God or the Queen’s enemies, riots, insurrections, civil commotions, structural defects or weaknesses and explosion. Subject as aforesaid and without limiting the generality of the foregoing, the Lessee shall keep the demised premises in clean and tidy condition. The obligation to repair as aforesaid shall not extend to or include repairs to the subfloor, roof or outside walls, (except plate glass in outside walls) of the building containing the demised premises or to any wiring installed by the Lessor in or about the said building unless the need for repair is caused by negligence or improper use or lack of proper maintenance on the part of the Lessee or its agents or employees. 2. a) xiv. Use The Lessee will keep the demised premises and every part thereof in clean and tidy condition and will not permit waste paper, garbage, ashes or waste or other objectionable material to accumulated (sic) thereon. The Lessor may draw to the attention of the Lessee breaches of this covenant, and instruct the said Lessee to rectify such breaches forthwith upon notice. 4. a) iii. Lessor’s Repairs: The Lessor covenants and agrees with the Lessee that the Lessor will from time to time cause to be made all necessary repairs and replacements to the demised premises which are not required to be made by the Lessee under any of the Lessee’s covenants hereunder, including repairs and replacements which are reasonably necessary as result of ordinary wear and tear and structural repairs and any repairs to the sub-floor, roof or outside walls (except plate glass in outside walls) and any repairs to the wiring installed by the Lessor, provided that the foregoing covenant by the Lessor shall not extend to any repairs which shall become necessary as result of any act or omission (including improper use or lack of property maintenance but excluding ordinary wear and tear) on the part of the Lessee, the Lessee’s agents or employees. The Lessor shall also maintain and ensure the reasonable operation of the heating and cooling system (including air conditioning) at the Lessor’s sole expense. 8. The Lessee shall have the right to lease the lands and premises in Schedule “A” hereto for further years on the same terms as indicated herein except for the following changes: a) The new term of the Lease shall be from August 1st, 2013 to July 31st, 2018; b) The basic rent shall be $7,700 per month (plus applicable federal and provincial taxes as indicated above); and c) There shall not be any additional option to renew the lease; and provided as follows: that the rent is not in arrears and; that the Lessee shall have provided to the Lessor written Notice of its Intention to Renew this lease for further year term on or before January 1st, 2013; then on the delivery of the said Written Notice of Intention to Renew to the Lessor, the term of the lease shall thereby be renewed as amended. CASE AUTHORITIES [13] Neither party cited or relied upon any case authority. POSITION OF THE LANDLORD [14] The landlord submits that the tenant is responsible for the lifting and cracking of the vinyl floor tiles by failing to maintain the floors with regular cleaning, waxing and polishing. The landlord claims damages in the amount of $22,533 to repair the two bad areas of the restaurant floor. The tenant rented the older building on an “as is” basis and, while some issues did arise, they were addressed and remedied on an ad hoc basis. The tenant had the opportunity to inspect the premises before closing the transaction but did not do so. Although the premises were looked at, the tenant did not retain building inspector at the time of purchase of the restaurant and lease of the building. There is no evidence of tortious interference by the landlord in preventing the sale by the tenant of its restaurant business. POSITION OF THE TENANT [15] The tenant submits the moisture in the building causes high humidity resulting in the problems with the subfloor and the vinyl tile. The tenant points to the questionable timing of the landlord’s notice dated March 11, 2011, shortly after the tenant complained about the roof leaking. The tenant submits that damage to the floor has not been shown to be the result of its negligence but is caused by structural defects in the building for which the landlord is responsible. [16] There is no issue that at the time the tenant took possession, the vinyl tile floor was waxed, polished, shiny and clean, without any chipped, lifting or loose tiles. Nor had the tenant expressed any concern about the floor tiles at that time. There is no issue, as well, that the tenant waxed and polished the floor on one occasion only, in October of 2011. [Invoice for $2,530 from Moose Jaw cleaning service dated October 19, 2011, Tab 3, PD1] The evidence does not show that the water leakage into the building was explained to the tenant prior to purchase of the restaurant and lease of the building. [17] In my view of all of the evidence excessive moisture and high humidity within the building undermined the subfloor, causing instability and resulting in lifting and cracking of the vinyl floor tiles. Moisture in the building material samples recently tested by the certified building inspector are five times in excess of standard reading for normal building samples, and accept his observations as to structural defects of the building giving rise to water infiltration into the building through the roof, ceiling, exterior walls and into the basement. also accept the opinion of the tenant’s expert in the field of installation and physical properties of floor coverings: after examining the building on two separate occasions and observing the cumulate effects of water infiltration into the building over time, particularly the standing water in the basement, (which must be resolved before any remedial work is undertaken) the witness was unequivocal that the movement and instability of the subfloor is primarily the result of moisture arising from structural defects in the building, and that only small percentage, perhaps 25%, of the cause of the lifting and cracking of the floor tiles could be attributed to poor maintenance lack of sufficient polish and waxing. The installer of the floor in 2001 was also of the view that water in the basement could cause the problem with the tiles but did not do so here since there was no evident water damage near the walls. However, when he looked at the floor last July, the installer did not test for moisture or humidity levels in the building material, nor did he test the subfloor. [18] The evidence does show that a part, but only a part, of the moisture entering into the subfloor was due to the negligence of the tenant in failing to properly maintain the floor. I accept that the damage to the floor is $22,281, and I find that the tenant is contributorily negligent to the extent of 25% of the damage. Leaking of water through the ceiling onto the floor did necessitate closure of the restaurant, causing reduction of business from customers who could reasonably be expected to be put off by the unsightly ceiling and floor tiles, and the catchment of the dripping water. Although the evidence shows that the restaurant was closed for several days even though daily overhead costs of $1,600 continued, no evidence was offered as to loss of profit or any other business losses. Nor has the tenant proved tortious inference by the landlord with potential sale of the restaurant. [19] The lease is in good standing. Both parties have substantially complied with their obligations under the lease which has now been renewed for five more years pursuant to clause (8) of the lease and reasonably assume the renewed lease will expire on July 31, 2018. By that time, when the premises are returned to the landlord, the floor will be 17 years old, having lasted 17/20 of its 20 year expectancy. The tenant’s liability is therefore ameliorated by the remaining life of the floor (three years) at the end of the renewed lease. The loss suffered by the landlord is, therefore $836. [25% of 3/20 of $22,281]. I find the only business loss proven by the tenant for which the landlord is responsible to be $4,800. [3 days closed at $1,600 per day in lost overhead costs] Thus, the net set off owing by the landlord to the tenant is $3,964. [$4,800 set off by $836] [20] The tenant shall have costs for this three day trial of $2,500 inclusive of disbursements, in lieu of taxable costs. [21] In the result, the tenant is awarded judgment against the landlord in the amount of $6,464 [$3,964 plus $2,500]. The tenant may set off this judgment against the base monthly rent of $7,700 as specified in clause 8(b) of the lease.

HELD: The Court held that the cause of the damage was high humidity in the building caused by water leaking into it from the roof. The failure of the tenant to maintain the floor caused approximately 25 percent of the damage to the floor. The estimated span for the flooring was 20 years. As the lease was in good standing at present and would expire in 2018, the age of the floor at that time would be 17 years. The Court awarded to the landlord the amount of $836, which was 25 percent of 3/20 of the damages claimed. The business loss claimed by the tenant was $4,800. Thus the net setoff owing by the landlord to the tenant was $4,800 less $836. The defendant tenant was awarded costs of the three-day trial of $2,500.

b_2013skqb407.txt

NOVA SCOTIA COURT OF APPEAL Citation: L.D.F. (Re) 2005 NSCA 64 Date: 20050408 Docket: C.A. 237211 Registry: Halifax Between: IN THE APPLICATION OF L.D.F. TO ADOPT THE PERSON WHOSE BIRTH IS REGISTERED AS NO. BY THE DEPUTY REGISTRAR GENERAL OF NOVA SCOTIA (* editorial note- removed to protect identity) under THE CHILDREN AND FAMILY SERVICES ACT Restriction on publication: Pursuant to s. 94(1) of the Children Family Services Act Judge(s): Chipman, Oland Hamilton, JJ.A. Appeal Heard: March 31, 2005, in Halifax, Nova Scotia Held: Appeal dismissed, as per reasons for judgment of Hamilton, J.A.; Chipman Oland, JJ.A. concurring Counsel: Joseph MacDonell Kerri-Ann Robson, for the Appellant Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act. PUBLISHERS OF THIS CASE PLEASE TAKE NOTE THAT s. 94(1) OF THE CHILDREN AND FAMILY SERVICES ACT APPLIES AND MAY REQUIRE EDITING OF THIS JUDGMENT OR ITS HEADING BEFORE PUBLICATION. SECTION 94(1) PROVIDES: 94(1) No person shall publish or make public information that has the effect of identifying child who is witness at or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child. Reasons for judgment: [1] The appellant, L. D. F., a single mother, appealed the November 26, 2004 decision of Justice Douglas MacLellan, refusing to grant her the adoption she sought with respect to her four year old daughter. At the conclusion of the hearing before us we indicated the appeal was dismissed with reasons to follow. These are the reasons. [2] The facts are scant, as acknowledged by the appellant, because the only evidence before the chambers judge was the usual documentation provided to court with an application for an uncontested adoption. [3] The appellant is currently 25 years old, was not married at the time of her daughter’s birth in June 2000 and remains single. The child has been living with the appellant since birth. The child’s father has had no contact with her nor has he provided any child support since November 2000. The appellant has worked for her present employer for approximately two years. [4] There is no evidence as to why there has been no contact between the child and her father since November 2000 or whether he was or is presently able to provide financial support for her and whether the appellant ever sought child support. It is not known if the appellant and the child have lived with the father or anyone else or if there is contact between the child and the extended families of either parent. We do not know how the child was supported from November 2000 when the father ceased support until February 2003 when the appellant started her present job. [5] The father was not notified of the adoption application and has not consented. Notice of the proposed adoption was given to the Minister of Community Services as required by s.76(1) of the Children and Family Services Act, Stats. N.S.1990, c. 5. The Minister made no recommendation with respect to the adoption and did not conduct home study. The Minister chose not to intervene or to take any position on the appeal. [6] The chambers judge refused to grant the adoption on the basis that it was not in the child’s best interests to do so even though he found all of the technical requirements for the adoption had been complied with. He agreed with the appellant that the father was not entitled to notice and was not required to consent to the adoption as result of the interplay between s. 67(1)(f) and s. 74(3) of the Act because he had not had contact with the child or provided support for her for two years. [7] In of his decision the chambers judge set out his concern with the proposed adoption: What benefit does this child receive from having an adoption in these circumstances? [8] In of his decision he answered that question: find that there is no benefit to the child here to be adopted by her natural mother. The [child] already has all the rights that an adoption would give her. [9] He further stated: [7] conclude that an adoption here would not benefit the child and would, in fact, interfere with the child’s right to have contact with her natural father and to benefit from any possible relationship. really do not know what the father’s position is. [8] Therefore, weighing the perceived benefit against the loss resulting from the adoption process, am not prepared to grant this adoption. [10] The “perceived benefit” the chambers judge was referring to was giving the mother more security by having control of the child. At the hearing before us appellant’s counsel described this “benefit” as “the mother gaining control of the child’s destiny, in case the father just walked in.” The loss the chambers judge was referring to was the loss of possible contact with and support from the father. [11] The issue before us was whether the chambers judge erred by failing to give adequate consideration to the factors he was required to consider, and by placing too much emphasis on irrelevant factors, in his determination of whether it was in the best interests of the child that the adoption be granted. [12] The appellant acknowledged the limited powers of this court on an appeal such as this, in the sense that we are not to intervene with the chambers judge’s decision unless there is material error, serious misapprehension of the evidence, or an error of law. Hickey v. Hickey, [1999] S.C.R. 528 at 10 and 12; Van de Perre v. Edwards, 2001 SCC 60 (CanLII), [2001] S.C.R. 1014, 11 and 12. [13] The appellant agreed that the primary consideration in an application for adoption is the best interests of the child as set out in s.2(2) of the Act: In all proceedings and matters pursuant to this Act, the paramount consideration is the best interests of the child. [14] The appellant agreed the chambers judge addressed the question of what was in the child’s best interests but argued that he erred by failing to give adequate consideration to the factors set out in s. 3(2) and (3) of the Act that must be considered in determining the best interests of child and by placing too much emphasis on an irrelevant factor, the child’s loss of potential relationship with her father if the adoption was granted. [15] Sections 3(2) and (3) are as follows: (2) Where person is directed pursuant to this Act, except in respect of proposed adoption, to make an order or determination in the best interests of child, the person shall consider those of the following circumstances that are relevant: (a) the importance for the child’s development of positive relationship with parent or guardian and secure place as member of family; (b) the child’s relationships with relatives; (c) the importance of continuity in the child’s care and the possible effect on the child of the disruption of that continuity; (d) the bonding that exists between the child and the child’s parent or guardian; (e) the child’s physical, mental and emotional needs, and the appropriate care or treatment to meet those needs; (f) the child’s physical, mental and emotional level of development; (g) the child’s cultural, racial and linguistic heritage; (h) the religious faith, if any, in which the child is being raised; (i) the merits of plan for the child’s care proposed by an agency, including proposal that the child be placed for adoption, compared with the merits of the child remaining with or returning to parent or guardian; (j) the child’s views and wishes, if they can be reasonably ascertained; (k) the effect on the child of delay in the disposition of the case; (l) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of parent or guardian; (m) the degree of risk, if any, that justified the finding that the child is in need of protective services; (n) any other relevant circumstances. (3) Where person is directed pursuant to this Act in respect of proposed adoption to make an order or determination in the best interests of child, the person shall take into consideration those of the circumstances enumerated in subsection (2) that are relevant, except clauses (i), (l) and (m) thereof. (Emphasis added) [16] In her factum the appellant argued that the chambers judge failed to give adequate consideration to the factors set out in subsections (a), (c), (d) and (e) of s.3(2) in particular. She argued that if the chambers judge had adequately considered these factors that he would have granted the adoption. She argued the adoption would allow her to ensure stability in the child’s life. It would allow her (1) to maintain positive relationship with the child and ensure the child secure place as member of her family, fulfilling s.(a); (2) to provide continuous care for the child, fulfilling s.(c); (3) to strengthen the bond that presumably already exists between the appellant and the child, fulfilling s.(d) and (4) to meet the physical, mental and emotional needs of the child, fulfilling s.(e), all being in the child’s best interest. [17] The applicable factors enumerated in s.3(2) may provide guidance in determining the best interests of child in the more usual type of adoption where persons who are not the biological parents of child seek to create the legal relationship of parent and child with child who has no parent to adequately care for him or her, simultaneously severing the ties between the child and his or her biological parents. On the facts of this case however, where the proposed adoption would not change the legal relationship between the child and the appellant, her biological mother, these enumerated factors provided little guidance to the chambers judge in trying to determine the best interests of the child. In this case these factors are neutral because the child will continue to be in exactly the same position in terms of her relationship with the appellant whether the adoption is granted or not. The adoption will not change that relationship. [18] Without being able to obtain guidance from consideration of the applicable enumerated factors in s.3(2), the chambers judge was left to consider “any other relevant circumstances” under s.3(2)(n) in determining whether the proposed adoption was in the best interests of the child. The other circumstance he considered was the consequence of the proposed adoption to the child with respect to her relationship with her father. The appellant argued the chambers judge erred by placing too much emphasis on the child’s loss of her possible relationship with and support from her father. [19] We disagree. Without the adoption the child’s legal relationship with her father is governed by the Maintenance and Custody Act, R.S.N.S. 1989, c.160. Section provides that child’s parents have legal duty to support their child if they are able. Sections 18 and 19 provide framework for access and custody to be determined with respect to child of unmarried parents, unless there has been an adoption. If the adoption was granted those statutory provisions would no longer apply and pursuant to s.80(1)(b) of the Act the child would cease to be her father’s child, with the consequent loss of possible contact, support and inheritance. On the facts of this case the chambers judge did not err when he balanced the neutral impact the adoption would have on the child’s relationship with the appellant against the loss to the child of possible relationship with and support from the father, and found there was net loss to the child if the adoption was granted. [20] This type of balancing test for determining the best interests of the child in the context of adoption was approved of by this court in Wolfe v. Cherrett (1978), 1978 CanLII 2149 (NS CA), 28 N.S.R. (2d) 17 at page 29 where the issue was whether it was in the best interests of the child to dispense with the consent of biological parent in step-parent proposed adoption: 40 must respectfully conclude that the learned trial judge did not ask the right question, namely, would the child derive material net gain in welfare if the father were permanently cut off? Not having asked the right question, he, of course, did not identify and weigh the factors which should be considered in answering that question. See also J.J.M. v. S.D.L. (1993), 1992 CanLII 4817 (NS CA), 117 N.S.R. (2d) 159, 32. [21] The appellant did not satisfy us, on the meagre facts available to the chambers judge, that he failed to properly take into account the applicable enumerated factors set out in s.3(2) or that he placed too much emphasis on the child’s potential relationship with her father in reaching his conclusion as to whether the proposed adoption was in the best interests of the child. It is clear from his decision that the chambers judge understood that the primary consideration in an application for adoption is the best interests of the child and that he identified and weighed several factors in deciding this. His comment that "knowing your natural parents is benefit" was not determinative. He made no reversible error in exercising his discretion in refusing to grant the adoption. [22] Accordingly, the appeal was dismissed. Hamilton, J.A. Concurred in: Chipman, J.A. Oland, J.A.

The chambers judge refused to grant an adoption to a single mother of her own daughter as he determined that the child would not gain anything vis a vis the mother by such an adoption but would lose the potential for a relationship and support from her father. The evidence before the chambers judge was meagre but showed that the father had not seen the child for the past four years. The mother appealed., appeal dismissed; the chambers judge focused on the best interests of the child and did not fail to give appropriate consideration to the factors set out in the Act. He did not place too much emphasis on the child's loss of a potential relationship with and support from the father on the facts of this case.

2005nsca64.txt

J. Q.B. A.D. 1994 J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF SECTION 49(1) OF THE RESIDENTIAL TENANCIES BETWEEN: SAMUAL JAMES POPOFF and DAN CHEVELDAYOFF and THE OFFICE OF THE RENTALSMAN RESPONDENT B. J. Kot for the appellant D. E. Labach for the respondent JUDGMENT GEREIN J. March 31, 1994 This is an appeal from a decision of the Rentalsmanordering that a writ of possession issue in respect topremises municipally described as 201 - 1st Street West inBlaine Lake, Saskatchewan. The appellant is tenant in residential premises owned by the respondent. On December 28, 1993, the appellant was served with notice to deliver up the premises described as 201 1st Street West, in the Town of Blaine Lake, Saskatchewan. When this did not produce the desired result, the appellant was served with notice of hearing to be held at the Office of the Rentalsman on February 9, 1994. Theappellant did not attend and in his absence a writ ofpossession was authorized in respect to the above describedpremises. It was subsequently ascertained by the deputy sheriff that the proper municipal address of the subject premises, which are located on corner lot, is 201 3rd Avenue West, Blaine Lake, Saskatchewan, although 201 1st Street West is listed in the telephone directory. When thiswas brought to the attention of the Rentalsman the writ ofpossession was amended to include the second address. Thiswas done without notice to the appellant. It is now argued on behalf of the appellant that the notice to vacate referred to the wrong premises as did the original writ of possession and that this deficiency vitiates the entire proceedings. It is further argued that the deficiency could not be corrected unilaterally by the Rentalsman without notice to the appellant. Section 23(1)(b) of The Residential Tenancies Act, S.S., c. R-22 provides: 23(1) notice of termination of tenancy agreement by landlord or tenant shall be in writing and shall: (b) identify the premises in respect of which the notice is given; The Act does not stipulate how the premises are to be identified and therefore any of number of methods would be in compliance with the section. However, whatever method is adopted, at minimum, it must accurately identify the premises. If this is not done, then there is non-compliancewith a mandatory section of the Act. What follows is that the notice to vacate is invalid and whatever follows thereupon is equally invalid. In the instant case, the municipal records disclose that the correct address is 201 3rd Avenue West. That was not the address contained in the notice to vacate. Accordingly, the Rentalsman had no jurisdiction to make an order in respect to premises not identified in that notice. In addition, the Rentalsman had no jurisdiction to amend the original order without notice to the appellant. accept that the appellant is being obstructionist, but he is entitled to insist upon compliance with the legislation, whatever his motive might be. However, considering the circumstances and the past conduct of the appellant am not prepared to exercise my discretion in his favour in respect to costs. Accordingly, the appeal is allowed and the order ofthe Rentalsman and the consequent writ of possession arequashed. There will be no costs of the appeal.

A notice to vacate rented premises contained an erroneous address. The Rentalsman granted a writ of possession and after the issuance of the writ, amended the writ to correct the address without notice to the tenant. The tenant appealed. HELD: Appeal allowed. There had not been compliance with s. 23(1)(b) of the Act. The notice to vacate was therefore ineffective and the consequent writ of possession was quashed. Given the tenant's obstructionist tactics he was denied his costs of the appeal.

a_1994canlii5012.txt

IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: v. Rhodenizer, 2003 NSPC 017 Date: 20030408 Docket: 1208549 Registry: Bridgewater Between: Her Majesty the Queen v. Lance Boyd Rhodenizer Judge: The Honourable Judge Crawford Heard: April 8, 2003, in Bridgewater, Nova Scotia Written Decision: May 14, 2003 Counsel: Franceen Romney, for the Crown Alan Ferrier, for the Defence By the Court: [1] The defendant has made an application for the exclusion of evidence found following a search conducted at his residence pursuant to a warrant issued by fax from the Justice of the Peace Centre in Dartmouth, N.S. [2] The defendant argues: (1) that the information to obtain the warrant did not meet the test in R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, and therefore that the warrant should not have issued; (2) that the search was therefore warrantless, breached his Charter s. right to be free from unreasonable search and seizure, and that evidence obtained by it should be excluded under s. 24(2) of the Charter of Rights and Freedoms. [3] The grounds stated in the Information to Obtain were: THAT on June 5th, 2002 the informant received information from reliable source (SOURCE #1), that Lance Rhodenizer of 196 High St., Apr. #2 of Bridgewater was selling marihuana for $13.00 gram. He also had magic mushrooms for $10.00 gram, and mescaline for sale. The source advised if person purchased gram of marihuana and mushrooms, the cost was $22.00 total. The informant also stated he/she had purchased marihuana from Mr. Rhodenizer in the past and that Mr. Rhodenizer purchases his narcotics from the city. This source has provided information to the informant in the past that has resulted in charges of possession for the purpose of trafficking and straight possession of marihuana under the Controlled Drugs and Substances Act. THAT on June 20th, 2002, S/Cst. Laliberte of the Bridgewater Police Department spoke to male (SOURCE #2) who wanted to remain anonymous. This person stated there was lot of traffic going to the basement apartment at 196 High Street. He also stated there was strong smell of marihuana coming from this apartment. The informant knows this location to be Mr. Rhodenizer’s apartment. THAT on July 2nd, 2002, the Bridgewater Police dispatch received an anonymous complaint from female (SOURCE #3) that Lance Rhodenizer of 196 High Street, Apt. #2 was selling and using drugs from his residence. This female also provided police with some of the vehicle plates that were attending the residence on regular occasions. THAT on July 9th, 2002, the informant and D/Cst. Feener spoke to confidential informant (SOURCE #4) with unknown reliability. He/she stated Mr. Rhodenizer was selling marihuana from his apartment. He/she also stated sometimes Rhodenizer has more than just marihuana for sale. He/she said there was lot of people coming to the apartment staying for brief periods of time (approximately 10 minutes). THAT on July 9th, 2002 D/Cst. Feener of the Bridgewater Police Department checked the Town’s water billing books and found the water bill for 196 High Street Apt #2 was in the name of Lance Rhodenizer. THAT on the 10th and 11th of July, 2002, the informant and D/Cst. Feener of the Bridgewater Police Department conducted surveillance on 196 High Street, the building in which Mr. Rhodenizer resides. Over an approximate two hour time period each night, high volume of car and pedestrian traffic was noted coming and going from the apartment building. This building has six rental units total. The individuals coming and going were noted to enter and leave the building within to 10 minutes and were noted to enter by the front entrance and go downstairs. There are two apartments located downstairs from the main entrance. Mr. Rhodenizer’s residence is one of these two units. THAT on the 11th of July, 2002, the informant spoke to reliable source (source #1) who advised he/she had purchased cannabis (marihuana) within the previous 48 hours at the residence of Lance Rhodenizer. THAT on the 16th of July, 2001[sic], the informant spoke to reliable source (source #1) who advised he/she had purchased cannabis (marihuana) within the previous 48 hours from Lance Rhodenizer. [4] D/Cst. Collyer, the informant in the Information to Obtain, testified in support of the warrant and was closely cross-examined by defence counsel. [5] In summary, the defendant points to the following flaws revealed by cross-examination: 1. Source #1, although stated to be reliable, had never given information which resulted in conviction. 2. Source #2 was anonymous and therefore of unknown reliability. Cst. Collyer was unable to state with certainty whether the "informant" referred to in the last sentence of the second paragraph referred to source #2 or to himself. It is therefore unclear whether the source knew the apartment belonged to the defendant; if not, he may have been speaking about the other basement apartment at 196 High Street. 3. Source #3 was also anonymous and therefore of unknown reliability, although Cst. Collyer deemed her information reliable because it provided corroboration for other sources. 4. Source #4's reliability was unknown; no specific dates were given. 5. The fact that on July D/Cst. Feener had to obtain the defendant's apartment number from town records makes it doubtful that the sources referred to in paragraphs 1-4 actually supplied that information; it appears more likely that at least part of the address given in those paragraphs was supplied by D/Cst. Collyer's later knowledge. D/Cst. Collyer was unable to state whether or not this was so. 6. The surveillance conducted on July 10th and 11th was ineffective in distinguishing which of the two basement apartments in the building was attracting the traffic. 7. Source #1 did not state whether the marihuana purchased from the defendant's residence on July 11 was bought from the defendant personally or from someone else at that address. 8. As to paragraph 8, D/Cst. Collyer stated that "2001" was typographical error and that the information was received on July 16th, 2002. He admitted that this was not questioned by the Justice of the Peace. He also admitted that there was no indication as to where the purchase from the defendant took place. 9. Generally he stated that he kept no notes regarding the contacts referred to in his Information and relied on receipts from paid informants to remember relevant dates, which was the practice at that time. He states that now notes are kept. He also confirmed that he had not spoken personally to the Justice of the Peace and that the only information on which she issued the warrant was what was contained in his written Information. Should the warrant have issued? [6] The Supreme Court of Canada set out the role of judge in reviewing the issuance of warrant in R. v. Araujo 2000 SCC 65 (CanLII), [2000] S.C.R. 992 as follows: 51 The reviewing judge does not stand in the same place and function as the authorizing judge. He or she does not conduct rehearing of the application [page1017] for the wiretap. This is the starting place for any reviewing judge, as our Court stated in Garofoli, supra, at p. 1452: The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted the authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge. [Emphasis added.] As noted as judge at the Quebec Court of Appeal in Hiscock, supra, at p. 326 C.C.C., even basis that is schematic in nature may suffice. However, as our Court has recognized, it must be basis founded on reliable information. In R. v. Bisson, 1994 CanLII 46 (SCC), [1994] S.C.R. 1097, at p. 1098, the requirement was described as "sufficient reliable information to support an authorization" (emphasis added). The Court concluded that this requirement had still been met despite the excision of retracted testimony. In looking for reliable information on which the authorizing judge could have granted the authorization, the question is simply whether there was at least some evidence that might reasonably be believed on the basis of which the authorization could have issued. 53 Other appellate court jurisprudence confirms this understanding. In the context of reviewing search warrant, appellate courts have looked to whether the authorization could have issued: e.g., Mitton v. British Columbia Securities Commission (1999), 1999 BCCA 186 (CanLII), 123 B.C.A.C. 263; R. v. Allain (1998), 1998 CanLII 12250 (NB CA), 205 N.B.R. (2d) 201 (C.A.), at p. 217; and R. v. Krist (1998), 1998 CanLII 6105 (BC CA), 113 B.C.A.C. 176, at p. 179. But they look at this in context. For example, in R. v. Monroe (1997), 1997 CanLII 3034 (BC CA), C.R. (5th) 324 (B.C.C.A.), at p. 333, Esson J.A. stated that, after looking for whether there was sufficient grounds on which the judge could have authorized warrant, "The judge was then required to assess the evidence placed before the justice, in the light of the evidence brought out at trial, in order to determine whether, after expunging any misleading or erroneous information, sufficient reliable information remained to support the warrant" (emphasis added). 54 The authorities stress the importance of contextual analysis. The Nova Scotia Court of Appeal, while reviewing the cases from our Court cited above, explains this in judgment dealing with problems arising out of errors committed in good faith by the police in the material submitted to the authorizing justice of the peace: An approach based on looking for sufficient reliable information in the totality of the circumstances appropriately balances the need for judicial finality and the need to protect prior authorization systems. Again, the test is whether there was reliable evidence that might reasonably be believed on the basis of which the authorization could have issued, not whether in the opinion of the reviewing judge, the application should have been granted at all by the authorizing judge. [7] In other words, rather than subjecting the Information to Obtain to paragraph by paragraph dissection, should look at it as whole and decide whether there was sufficient reliable evidence which might reasonably have been believed by the Justice of the Peace on which she could have issued the warrant. [8] In this process, should apply the test and criteria set out in R. v. Debot, 1989 CanLII 13 (SCC), [1989] S.C.R. 1140: ¶53 In my view, there are at least three concerns to be addressed in weighing evidence relied on by the police to justify warrantless search. First, was the information predicting the commission of criminal offence compelling? Second, where that information was based on "tip" originating from source outside the police, was that source credible? Finally, was the information corroborated by police investigation prior to making the decision to conduct the search? do not suggest that each of these factors forms separate test. Rather, concur with Martin J.A.'s view that the "totality of the circumstances" must meet the standard of reasonableness. Weaknesses in one area may, to some extent, be compensated by strengths in the other two. [9] Looking first at the nature of the evidence, over all I find that it was compelling. Noting the progression of dates in each succeeding paragraph of the Information, accept D/Cst. Collyer’s testimony, and find that it is reasonable to conclude, that the year “2001" in the penultimate paragraph was typographical error and was intended to read "2002". So four apparently separate and independent sources over the month and a half prior to the warrant application all confirmed, with varying amounts of detail, either that the defendant was selling drugs or that drugs were being sold or used at his apartment, or both. There was therefore evidence on which the Justice of the Peace could conclude that this was continuing activity and that it was on-going at the date of the warrant application. [10] In regard to the credibility of the sources, although individually none of these sources was of known or proven reliability, collectively they reinforce and confirm each other. [11] Finally the police did not seek a warrant on the basis of this information alone, but conducted surveillance, which corroborated the information provided by their sources. To suggest that the traffic could have been going to the other basement apartment is to propose level of coincidence that is highly improbable in the light of the information provided by the four sources. Conclusion [12] I find that there was sufficient reliable evidence to constitute the reasonable and probable grounds for issuance of this warrant. In doing so, note that the standard of proof for issuance of warrant is reasonable and probable grounds, which must be more than mere suspicion, but is considerably less than proof beyond reasonable doubt or even proof on balance of probabilities. [13] Having found that the warrant was properly issued and that the search therefore met the standard in Charter s. 8, need not consider s. 24(2).

The defendant applied to have evidence found during a search of his premises excluded on the basis that the search warrant was invalid. Application dismissed; there was sufficient evidence to constitute reasonable and probable grounds for the issuance of the warrant. Overall the nature of the evidence was compelling with four separate and independent sources all confirming either that the defendant was selling drugs or that drugs were being sold at his residence; although individually none of the sources was of known or proven reliability, collectively they reinforced and confirmed each other; and the police conducted surveillance which corroborated the information provided by the sources.

8_2003nspc17.txt

QUEEN’S BENCH FOR SASKATCHEWAN FAMILY LAW DIVISION Citation: 2006 SKQB 218 Date: 20060508 Docket: F.L.D. No. 329/04 Judicial Centre: Battleford BETWEEN: SHAUNA SHARON PETERSEN PETITIONER (RESPONDENT) and ROCKY DEAN ELPHINSTONE RESPONDENT (APPLICANT) Counsel: James A. Morrison for the applicant (Rocky) Monte J. Sheppard for the respondent (Shauna) JUDGMENT KRUEGER J. May 8, 2006 [1] Rocky Dean Elphinstone (Rocky) applies to vary the consent joint custody order granted on October 14, 2004. His application was prompted by the relocation of Shauna Sharon Petersen (Shauna) on March 3, 2006, with one of the couple’s two children, Tyson Elphinstone (Tyson), from the Kindersley district in northwestern Saskatchewan to the Archerwill district in northeastern Saskatchewan. viva voce hearing was directed. BACKGROUND INFORMATION [2] According to Rocky, he and Shauna started living together on an acreage five miles south of Flaxcombe, Saskatchewan, on July 12, 1994. Two children were born of that relationship: Kailey Elphinstone, born April 11, 1995 (11 years old); Tyson Elphinstone born August 25, 1999 (6 years old). The parties separated on May 12, 2004, when Shauna left the family home with the two children. [3] From May 12, 2004, until the end of June, 2004, Shauna and the children lived with friend, Katherine Grimsdale, in trailer in the Town of Kindersley. For the summer months they moved in with Shauna’s parents at Marean Lake in northeastern Saskatchewan. In August, 2004, Shauna obtained low-income housing in Kindersley where the family resided until July, 2005. Shauna, her fiancé, Lee Etsell, with whom she was then living, and the children then moved to Coleville. [4] Through their respective counsel, Rocky and Shauna had issued the consent order of October 14, 2004. It provides for: (a) Joint custody of the children with their primary residence being the home of Shauna at Kindersley; (b) reasonable access to Rocky, including his four days off every second week; (c) child support in the amount of $702.00 per month based on an annual income of $53,600.00 by Rocky, commencing on October 1, 2004; (d) spousal support for Shauna in the sum of $300.00 per month to run from October 1, 2004, until September 1, 2006; and (e) the delivery by Rocky to Shauna of specific furniture and furnishings on or before November 4, 2004. [5] The terms of the consent order have been more honoured in their breach than in compliance. Except for one payment of $1,002.00 on October 4, 2004, another on December 17, 2004, in the amount of $2,004.00 and grocery voucher (gift certificate) in the sum of $250.00, no spousal or child support has been paid. Rocky acknowledges his failure to make regular payments of spousal and child support as an error in judgment, but has not been moved to rectify the error. The furniture and furnishings promised have not been delivered. [6] After the separation Rocky remained on the acreage south of Flaxcombe. The home is an older four-bedroom house. understand bedrooms for Kailey and Tyson are located in the basement. Shauna started having difficulty managing Kailey and by agreement Kailey went to live with Rocky and his wife, Tara Elphinstone, in mid October, 2005. Rocky enrolled Kailey in school at Marengo where she continues to attend classes by bus. [7] From the outset access was problem for Rocky. Initially he would see the children every second weekend for three or four months in row, then would not have any access for the next month. There were always circumstances that created problems. By the summer of 2005 only Kailey was attending at Rocky’s home for access visits. After Kailey went to live with Rocky, access for Tyson became even less frequent. Between mid October, 2005, and the end of February, 2006, Rocky had just three access visits with Tyson. [8] After Kailey moved to her father’s home Shauna’s access to her was primarily by telephone. Those conversations occurred on weekly basis and sometimes included conversations between Tyson and Kailey. Personal access visits were infrequent. [9] On March 3, 2006, Shauna and Tyson moved from Coleville to the Archerwill district. Lee Etsell was already working for Walker’s Seeds at Tisdale, Saskatchewan, and the plan was for Shauna, Lee and Tyson to live with Shauna’s parents at their Marean Lake cabin until they could permanently settle into home of their own. The move had been planned in advance and when Rocky learned of Shauna’s plan to relocate, he contacted her to discuss the future. [10] There is some conflict as to what was discussed at the meeting between the parties. Shauna insists that Rocky had no objection to her move provided that she agree to contact the maintenance enforcement office and withdraw her claim for child and spousal support. That would allow Rocky to have his driving privileges reinstated. When she declined to do so, Rocky stated that she would be sorry. [11] Rocky claims that the focus of the discussion was access and that he did not initially raise the matter of Shauna’s planned move. When Shauna did not mention moving, Rocky inquired about the rumour he had heard. Shauna indicated that there was no certainty about moving, but if she moved they could discuss different access options. The following day Rocky was advised that Shauna was moving and there would be no access agreement. According to Rocky, he was told by Shauna, “You have your family, we have ours”. [12] Marean Lake is 15 miles from Archerwill. Shauna’s parents own and live in two-level three-bedroom cabin with two bathrooms and deck on two sides. Tyson has his own bedroom on the second level. Shauna plans to purchase, with the assistance of her parents, an acreage in the Archerwill district in the near future. She and Lee Etsell plan to marry later this year. [13] Tyson rides school bus to Archerwill where he attends Lynn Prosko’s grade one and two class. He is in grade one with two other boys. Ms. Prosko also teaches kindergarten part time and Tyson participates in some of those classes. Tyson has some motor co-ordination and information processing deficiencies. He is easily distracted and has difficulty concentrating. No medical evidence was provided, but Tyson may also have chronic ear infection. He requires special education resource help, but is good natured and readily adjusts to different school and environmental situations. [14] Kailey has settled in well with Rocky and his wife, Tara. She was variously described at the hearing as mature, articulate, bright and able to assert her views. She misses her brother and wishes that they could live together. Neither parent suggested changing Kailey’s primary residence from Rocky’s home. At present there exists de facto split custody situation. THE ISSUE [15] The sole issue on this variation application is determining the primary residence of Tyson. That entails deciding what is in his best interests. [16] The law relating to the mobility rights of divorced parents was clearly defined in Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] S.C.R. 27 (S.C.C.). Before custodial/primary parent is permitted to relocate child where there is an existing custody order or agreement, there must be material change in circumstances affecting the child since the making of that order or agreement. Once the threshold test has been met, the court embarks upon fresh inquiry into what is in the best interests of the child in the new circumstances. Ultimately the focus is the best interests of the child under either The Children’s Law Act, 1997, S.S. 1997, c. C-8.2, or the Divorce Act, R.S.C. 1985, c. (2nd Supp.) [17] change from one community to another that involves changing schools, living arrangements and new associations is change in circumstances. The proposed relocation of Tyson to the Archerwill district, community five and half to six hours away from Flaxcombe, also requires changing the access arrangements. Those are not changes that were contemplated by the consent order of October 14, 2004. They are changes in circumstances that are material. The original order, however, was made pursuant to The Children’s Law Act, 1997, and not the Divorce Act. material change within the meaning of the Divorce Act may not be threshold requirement. See Johnston v. Kurz, 2004 SKQB 362 (CanLII). In any event there is ample reason to embark upon an inquiry as to Tyson’s best interests resulting from the change in circumstances. [18] In every case, determining what is in the best interests of the child comes down to weighing the benefits of retaining close contact with one parent against the detriment that results from losing close contact with the other parent and the community in which the child has lived. [19] In deciding what is in the best interests of Tyson, consider the following to be relevant factors: 1. The existing split custody arrangement and the relationship of each child with the other. 2. The existing living arrangements and the time spent by each child with each parent. 3. The desirability of maximizing the contact of each child with both parents. 4. The views of Kailey as expressed through the expert. 5. The disruption for Tyson resulting if removed from the Kindersley area. 6. The disruption to Tyson if his custody or primary residence is changed. [20] Both parents, am satisfied, dearly love their children. Shauna has developed strong bond with Tyson and Rocky has very close relationship with Kailey. That does not make one better parent than the other. The existing circumstances do, however, hinder the ability of the children to maintain close relationship with each other and with both parents. [21] After Kailey went to live with Rocky, neither parent did much to facilitate the access of either child. Although only short distance apart, neither Kailey nor Tyson saw his/her non-custodial parent and sibling on regular basis. Even telephone access has been sporadic. Shauna admits that she has call display on her telephone and does not always return phone calls from Rocky’s phone number. [22] The existing living arrangements have been far from satisfactory. While neither parent is prepared to accept responsibility for the lack of time spent by each child with the other, both parents have established homes that have accommodated only one child. Since directing the hearing and ordering, on an interim basis, access every second weekend involving both children, more time is being spent by each child with the other parent. [23] In the past Kailey has initiated telephone contact with Shauna to arrange access visits. Shauna has insisted that any access times be approved by Rocky. Access has not often occurred. Access to Tyson, although seldom, when exercised is mainly with Kailey and Tara. Rocky’s acreage comes complete with horses, dogs and cats and Tyson always enjoys himself on the access visits to his father’s acreage. [24] Shauna, am satisfied, had no intention of informing Rocky of her planned move to the Archerwill district. When they met in February, 2006, the move, although imminent, was not mentioned until Rocky raised the matter. do not believe that Rocky raised the moving issue in order to discuss access. He had been permitted access to Tyson on only three occasions in the past four months, yet had not sought any redress. Rocky was more interested in resolving his financial obligations to Shauna and in obtaining her undertaking to contact the maintenance enforcement office than in discussing access. In the future it is imperative that more and better access be granted to both Kailey and Tyson. [25] On March 28, 2006, Kailey was interviewed by Richard Kuckartz, youth and family counsellor with over 20 years experience in the field. He was not requested to and did not conduct home study. Perhaps because he was not able to also interview Tyson, Mr. Kuckartz limited his testimony to reiterating what had been related to him during his interview with Kailey. She feels that her mother lied to her about Tyson’s availability to talk to her on the telephone. The conclusion that Shauna lied may have been influenced by Rocky’s reading to Kailey portions of an affidavit sworn by Shauna. Three wishes expressed by Kailey were: (a) That there be more happiness; (b) that her brother, Tyson, live with her; and (c) that her mother not act like child. At the time Mr. Kuckartz interviewed Kailey she was already aware that Shauna and Tyson had moved to the Archerwill district and that court hearing was pending. Understandably, Kailey viewed the circumstances from the perspective of her father. [26] Tyson has personality that allows him to adjust easily to changes in circumstances and surroundings. Tara Elphinstone indicated that it takes Tyson awhile to adjust, but that he warms to everyone in time. Lynn Prosko, his present teacher, stated that by the end of the first week in his new school Tyson was hugging and kissing her before going home each night. He has been well received and accepted by everyone in the classroom. Sharon Petersen, Tyson’s maternal grandmother, saw no difference in him when he moved from one home to another. There has not been any disruption to Tyson in moving from Coleville to the Archerwill district. There would not likely be any disruption in his moving to Flaxcombe. Disruption to Tyson as result of being moved away from Kindersley is not determining factor. [27] Placing Tyson in the home of Rocky as his primary residence because of the relocation of Shauna to the Archerwill district must be considered in the context of the impact that such change would have on him. Shauna has always been Tyson’s primary caregiver. As described by Madam Justice L’Heureux-Dubé in Gordon, supra, she is the psychological parent. The strong bonding between Shauna and her son, Tyson, is stabilizing influence on his life. While Tyson readily adjusts to changes in circumstances and surroundings, the one constant in his life has been his mother. Tyson misses Kailey and speaks of her in positive way, but depends on his mother for support. Deference must be paid to Shauna’s views, including her choice of where to live and to work. POSITION OF EACH PARENT [28] It is the contention of Rocky that moving Tyson from Kindersley to Coleville, although unilateral, did not uproot him from his community, friends, school, activities and certainty. The move to the Archerwill district is to an entirely new and different community. He will be living with grandparents, attending school less able to provide for his special needs and away from his friends and family. That will be disruption to him. [29] The wishes of both Kailey and Tyson are that they live together. The home of Rocky, it was suggested, is stable and familiar to both children. That is where Tyson has spent considerable portion of his life. Lee Etsell, who is now permanent part of Shauna’s life, has criminal record of violence. Kailey was scared when living with him. In the final analysis, it was argued, it would be better if both children were in the same home and there was no suggestion that Kailey should be removed from Rocky’s home. [30] According to Shauna, it is in the best interests of Tyson to maintain the status quo. Shauna is the psychological parent and Tyson gets along well with Lee Etsell. There is no evidence of any violent behaviour or conduct by Lee Etsell toward any member of Shauna’s family. It will not, it was argued, be any more difficult to maximize access between the parents and the children at distance than it was when they all lived in the same community. The relocation may actually improve the access attitude of the parents. [31] Changing Tyson’s primary residence to the home of Rocky will not return him to the school he was previously attending. He would have to adjust once again to new school (Marengo), teacher and classmates. Tyson is no stranger to the Archerwill district or to the home of his maternal grandparents. He has, it was suggested, spent considerable time with them in the past. The evidence is that Tyson interacts mainly with Kailey when on access visits to Rocky’s home. [32] It is clear to me that the only viable options at this time are to either permit Shauna to relocate Tyson to the Archerwill district or to change the primary residence of Tyson by placing him in the home of Rocky. Shauna has foreclosed the option of returning to live in the Kindersley district. Too many irreversible events have taken place. In any event it would not necessarily serve Tyson’s best interests to order that Shauna be entitled to retain Tyson’s primary residence only by returning to the Kindersley district. [33] For Tyson there are negative consequences involved in moving to the Archerwill district. Access to his father and his sister become more problematic and travel arrangements more difficult. The move must, however, be considered in light of the circumstances that existed prior to the relocation. The parties had already adopted split custody arrangement without formalizing access or adjusting child support. They had not bothered to consult with their counsel or to advise counsel that they were no longer following the terms of the consent order of October 14, 2004. [34] There are also negative consequences involved in changing Tyson’s primary residence. He would be separated from his psychological parent. The special needs of Tyson require that he have the assistance and support of someone to whom he is closely bonded. Kailey, admittedly at age 11 years, is mature and adult-like. She is sibling who would be positive consequence if Tyson were living in the same home as her. She must not be asked to assume parenting role. [35] This has not been an easy decision to make, but permitting Shauna to relocate Tyson to the Archerwill district is, in my view, in his best interests. It is important that Tyson continue to live in the home of the parent whose constant presence he has become accustomed to No matter what the decision, it involves change of location for Tyson. Ultimately what is best for him must be the only consideration. Kailey has made her choice and her parents have accepted her decision. [36] Counsel for the parties have agreed upon an access arrangement pending the rendering of this judgment. The hearing has also established the payments that have been made and acknowledged on account of child and spousal support. Hopefully an agreement can be reached between the parents on these matters. If not, the issue of access, ongoing child support and arrears of support may be returned to me by contacting the Local Registrar and arranging for time. Outstanding family property issues may have to be dealt with at pre-trial conference. [37] There shall be an order as follows: 1. The parties shall continue to have joint custody of Kailey and Tyson. 2. The primary residence of Kailey shall be with the respondent, Rocky Dean Elphinstone. 3. The primary residence of Tyson shall be with the petitioner, Shauna Sharon Petersen. 4. The petitioner, Shauna Sharon Petersen, shall be permitted to relocate Tyson to the Archerwill district. 5. Access and child support issues may be returned to me for orders or directions at the request of either party. 6. Each parent shall keep the other provided with health, educational progress and extracurricular activity information relating to the child in that parent’s home. 7. There shall be no order as to costs. J. D. K. KRUEGER

The respondent applies to vary the consent joint custody order granted in October 2004. His application was prompted by the relocation of the petitioner with one of their two children, Tyson. The sole issue on this variation application is the determination of the primary residence of Tyson. HELD: 1) The petitioner wants to move Tyson 5.5 hours away from the respondent. This also requires a change in access arrangements. These are changes in circumstances that are material. 2) The petitioner has developed a strong bond with Tyson. The respondent has developed a close relationship with the parties' other child Kailey. After Kailey went to live with the respondent, neither parent did much to facilitate the access of either child. Before the petitioner and Tyson moved, although a short distance apart, neither Kailey nor Tyson saw his or her non-custodial parent and sibling on a regular basis. Even telephone access has been sporadic. Both parents have established homes that accommodate only one child. 3) The petitioner's move must be considered in light of the circumstances that existed before the petitioner's relocation. The parties had already adopted a split custody arrangement without formalizing access or adjusting child support. 4) Permitting the petitioner to relocate is in the best interests of Tyson. It is important that Tyson continue to live in the home of the parent whose constant presence he has become accustomed to. The petitioner has always been Tyson's primary caregiver. The petitioner is the psychological parent.

b_2006skqb218.txt

J.C. E. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF ESTEVAN BETWEEN: MURRAY ALAN FLECK and NATHANIEL DAVIDSON, Executor of the Estate of Thomas Davidson, Sr. and ESSO RESOURCES CANADA LIMITED DEFENDANTS P.D. Elash on behalf of the plaintiff R.B. Morris P.E. Bood on behalf of the defendants JUDGMENT KYLE J. November 7, 1995 The facts of this case are relatively simple. When Thomas Davidson, Sr. sold his farm to his son, Thomas Davidson, Jr., in 1968, he retained the right to continue receiving the rentals arising from four surface leases which he had previously granted to oil companies in respect to producing oil wells. When, in 1973, his son, Thomas DavidsonJr., granted an option to purchase to the plaintiff, asrepresented by his agent, the agreement contained thefollowing paragraph: (11) It is understood and agreed between the Parties hereto that there are four (4) wellsites for the production of petroleum and/or natural gas located on the South Half of 14- 4-5-W2 and Roadways thereto and that all benefits and advantages and rentals and emoluments to be paid or derived pursuant to such surface leases are not being transferred to the Optionee but have been reserved by the predecessor in title of the Optionor of the Second Part and the Optionee covenants and agrees to enter into separate agreement with the Optionor of the Second Part and with the Executors of the estate of Thomas Davidson Senior with reference to the reservation of such surface leases. The option was exercised and a fee simple title wasissued to the plaintiff in 1973. The title was encumbered by,inter alia, caveats protecting the surface leases but therewas no reference to the rent charge reserved or excluded bythe option agreement. The parties are neighbours; the families are friends and it was the wish of the sellers to assure that the land fell into the family of which the plaintiff was son, one who needed to expand his farming operation. From 1973 until 1988 the proceeds of the surface lease rentals were paid to the holder of the rent charge. During this period review conducted pursuant to surface lease legislation required the consent of the landowner and the plaintiff gave that consent. He took legal advice in 1985 or 1986 as to his chances of avoiding the reservation in such way as to assure that he got the money instead of the defendants. He was apparently advised that since he had an unencumbered fee simple title he need not recognize the contractual reservation and this action ensued. It is based upon s. 237 of The Land Titles Act, R.S.C. 1978, c. L-5 which provides as follows: 237(1) No person contracting or dealing with or taking or proposing to take transfer, mortgage or lease from the owner of any land for which certificate of title has been granted shall, except in case of fraud by such person, be bound or concerned to inquire into or ascertain the circumstances in or the consideration for which the owner or any previous owner of the land is or was registered or to see to the application of the purchase money or of any part thereof, nor shall he be affected by notice direct, implied or constructive of any trust or unregistered interest in the land, any rule of law or equity to the contrary notwithstanding. (2) Knowledge on the part of any such person that any trust or unregistered interest is in existence shall not of itself be imputed as fraud. On its face it appears that the section has the effect of enabling purchaser to take advantage of the owner of known but unregistered interest in land even in the face of contrary contractual obligation as between the purchaser and his vendor. There are many, many cases of situations where an unregistered interest has come into conflict with registered interest. See V. Di Castri, Q.C., Registration of Title To Land, Vol. 2, (Carswell, 1987, as updated to Rel. 4, 1995), chapters 18 and 19. Rarely, if ever, has there been case where, as here, purchaser has contracted to obtain the property under an instrument clearly accepting the unregistered equitable interest, then has obtained fee simple title, then has permitted the unregistered interest to continue unimpeded for 15 years and then, perhaps tiring of the inconvenience of the lease and thinking that the money would be useful, has decided to seek an order of this Court terminating the other interest and directing that it be paid to him. In fairness, his counsel made no suggestion that the plaintiff had moral claim, it is purely an attempt to secure by legal means that which he had previously agreed to forego. The courts, anxious to protect equitable claims but equally anxious not to disturb the indefeasibility of title, have resolved claims of various owners of unregistered interest in many ways, usually depriving the owner of the unregistered interest in favour of the purchaser. This is a court of equity as well as a court of lawand as such it is repugnant that the court be called upon tovest in an applicant an interest which he has heretoforefreely recognized to be the property of another, both beforeand after receiving his transfer under The Land Titles Act. True, one could have registered caveat to protect the rent charge, but the effect of caveat is purely one of notice to potential purchaser of an interest to which he might be subject if he acquired the interest of the registered owner. In this case there was no need for notice to the plaintiff as the contract under which he acquired his right to transfer specifically reserved from the lands being optioned the rent charge now before the court. In Reeves v. Konschur (1909), 10 W.L.R. 680 (Sask.) question of similar nature arose and there resulted an examination of the impact of the indefeasibility provisions of The Land Titles Act when they come into conflict with equitable rights. The plaintiff asserts that whatever rights arose fromthe option agreement were merged in the transfer andeffectively disappeared upon the registration of the transferand the issuance of a new, and for this purpose, unencumberedtitle. It is true that in many cases such merger would take place, however, in Reeves v. Konschur, supra, at p. 689 Lamont J. held that unless the provisions of The Land Titles Act bar the relief sought by the appellant, the court, on its equitable jurisdiction being invoked, should deal with the rights of parties on the footing of there being no merger. Itis apparent in this case that there was no intention that therent charge would be merged since it was recognized andallowed to continue in the hands of its holders for a periodof about 15 years. At p. 692 Lamont J. went on to say: [W]hile it is settled that certificate of title in the hands of registered owner who in good faith purchased relying upon the register is conclusive as against adverse claimants, it is not to be understood that the certificate of title cannot be questioned at all in Court of law. In Wilkie v. Jellett, [1896 CanLII 49 (SCC), Terr. L.R. 133, 26 S.C.R. 282] McGuire, J., said: "I cannot accept the proposition that court exercising equitable jurisdiction is powerless, when confronted with certificate of title, to question the ownership therein set forth". And at p. 693: The conclusion, therefore, at which have arrived, is, that the Land Titles Act is only intended to confer indefeasible titles on those who deal with the registered owner, and deal with him on the faith of his registered title. It affords no protection to registered owner against equitable rights which he himself has created, and is no defence when his own title is attacked by person rightfully entitled to the land. If, therefore, person employed to buy land for another takes the title in his own name, his certificate of title is no defence against the rightful owner. He is merely trustee for him, and the Court will enforce the trusts unless the rights of the bona fide purchaser in the meantime intervene. This and similar cases are summarized in V. Di Castri, Q.C., supra, in the following way (p. 767): In any event, it was never intended that registered owner, merely by exhibiting certificate of title, should be able to escape the performance of contracts he has entered into prior to, contemporaneously with or subsequent to the registration of his interest, or to deny trusteeship which he has created or one which may be fastened upon him by law. As between transferor and transferee the doctrines of equity as to mistake, accident, rectification and constructive trusts continue to operate. The owner of an unregistered equitable interest, of course, runs the risk of his interest being cut out by the intervention of bona fide purchaser for value. On the basis of the foregoing analysis and with aneye to s. 250 of The Land Titles Act which seems to underlinethe jurisdiction of this Court, the declaration which hasbeen sought is denied. The right of the estate of Thomas Davidson, Sr., or persons claiming through and under that estate to continue to receive the surface lease rentals here in question has not, because of the provisions of the option agreement under which the plaintiff acquired his title, been negated. The absence of a caveat protecting the rent chargehas had no affect because of the plaintiff's continuedownership of the property. number of arguments were put forth during the trial relating to privity of contract, the interpretation of the will of Thomas Davidson, Sr., estoppel and various other matters. Those arguments have been considered in making the above finding. The plaintiff's action is dismissed withcosts.

When Davidson, Sr. sold his farm to his son he retained the right to continue receiving the rentals arising from four surface leases which he had previously granted to oil companies in respect to producing oil wells. The son granted an option to purchase to the plaintiff which was exercised and a fee simple title was issued in 1973 subject to encumbrances including caveats protecting the surface leases. There was no reference to the rent charge reserved or excluded by the option agreement. The plaintiff asserted that whatever rights arose from the option agreement were merged in the transfer and effectively disappeared upon the registration of the transfer and the issuance of a new unencumbered title. HELD: Declaration denied. Plaintiff's action dismissed with costs. 1)The absence of a caveat protecting the rent charge has had no affect because of the plaintiff's continued ownership of the property. 2)Rarely, if ever, has there been a case where, as here, a purchaser has contracted to obtain the property under an instrument clearly accepting the unregistered equitable interest, then has obtained a fee simple title, then has permitted the unregistered interest to continue unimpeded for 15 years and then, perhaps tiring of the inconvenience of the lease and thinking that the money would be useful, has decided to seek an order of this Court terminating the other interest and directing that it be paid to him. His counsel made no suggestion that the plaintiff had a moral claim, it was purely an attempt to secure by legal means that which he had previously agreed to forego. This is a court of equity as well as a court of law and as such it is repugnant that the court be called upon to vest in an applicant an interest which he has heretofore freely recognized to be the property of another, both before and after receiving his transfer under The Land Titles Act. 3)It was apparent that there was no intention that the rent charge would be merged since it was recognized and allowed to continue for 15 years.

d_1995canlii5746.txt

NOVA SCOTIA COURT OF APPEAL Citation: Goyetche v. Goyetche, 2006 NSCA 24 Date: 20060222 Docket: CA 252756 Registry: Halifax Between: Eileen Elizabeth Goyetche v. David Thomas Goyetche Respondent Judges: Bateman, Saunders Hamilton, JJ.A. Appeal Heard: February 14, 2006, in Halifax, Nova Scotia Held: Appeal allowed with costs and case remitted to the Supreme Court of Nova Scotia for a rehearing on an expedited basis, as per reasons of Saunders, J.A.; Bateman and Hamilton, JJ.A. concurring. Counsel: Peter Lederman, Q.C., for the appellant Alain Bégin, for the respondent Reasons for judgment: [1] Cross applications were filed by Mr. & Mrs. Goyetche in Supreme Court Chambers on April 13, 2005 and April 21, 2005 respectively: his seeking orders to terminate spousal support, to sell the matrimonial home, and to return to him certain personal belongings; and hers seeking orders to provide her with interim spousal support, as well as payment of support arrears and a reinstatement of her benefits under his medical insurance plan. [2] These two interlocutory applications were heard by Justice J. E. Scanlan on June 28, 2005. Both parties testified and were subject to cross-examination. In an oral decision at the conclusion of the hearing Justice Scanlan ordered, among other things, that the matrimonial home be put up for immediate sale; that Mr. Goyetche continue to pay Mrs. Goyetche $800.00 per month in spousal support terminating on June 1, 2006; that Mrs. Goyetche immediately return to Mr. Goyetche certain personal belongings; that Mr. Goyetche continue to pay the monthly mortgage payments on the matrimonial home, with all such payments made after June 28, 2005 credited to him from the sale proceeds of the home; and that the equity in the matrimonial home would be divided equally between the parties after first deducting legal fees and real estate commission. [3] Mrs. Goyetche appeals the decision claiming reversible error on the part of the Chambers judge in two respects: first, that he had no evidence before him to justify selling the matrimonial home and divide the proceeds of sale equally between the parties, and that he was influenced by irrelevant considerations relating to the behaviour of the appellant. [4] The standard of review we apply in cases such as this is well known. This court will not interfere with discretionary order, especially an interlocutory one such as arose here, unless wrong principles of law have been applied or patent injustice would result. See, for example, Exco Corporation Limited v. Nova Scotia Savings Loan et al (1983), 59 N.S.R. (2d) 331(C.A.); The Attorney General of Canada v. The Foundation Company of Canada Limited et al (1991)(C.A.); Minkoff v. Poole (1991), 1991 CanLII 2516 (NS CA), 101 N.S.R. (2d) 143 (C.A.); Temple v. Riley (2001), 2001 NSCA 36 (CanLII), 191 N.S.R. (2d) 87 (C.A.); and National Bank Financial Ltd. v. Mahoney, 2005 NSCA 139 (CanLII). [5] After carefully considering the record and the submissions of counsel, we are satisfied that this is case where we ought to intervene and set aside certain provisions of the order under appeal. [6] We need not address what the appellant has rather obliquely attempted to characterize as errors of law, but which might more accurately be described as too precipitously ordering the sale of the matrimonial home on an interlocutory basis without the benefit of professional appraisal or any compelling and urgent reason to do so; and complaining that the Chambers judge formed negative opinion of the appellant’s credibility from her admittedly frequent and expensive bingo playing habits. [7] Rather, the reason for our intervention is that when considering these cross-applications the course of action urged upon the judge by counsel resulted in patent injustice to the appellant, albeit quite unintended. [8] As the parties agreed and as the judge made clear in his decision, this case presented very unique set of circumstances. The appellant, Eileen Goyetche, was born on June 5, 1941. The petitioner/respondent, David Goyetche, was born on March 11, 1941. Each will turn 65 this year. They were married on August 18, 2001, but did not live together for the first 18 months due to Mr. Goyetche’s employment out of province. They separated on July 15, 2004. [9] Mr. Goyetche’s petition for divorce is dated January 10, 2005. Prior to the marriage Mrs. Goyetche owned her own home in Bible Hill and supported herself on social assistance disability benefits. Those benefits were terminated when the couple married. At that time the outstanding balance on her mortgage was approximately $33,500.00. Just prior to their marriage she transferred title to her home into both their names. They remortgaged the house, leaving new mortgage balance of close to $48,000.00. The borrowed money was used in renovation projects and household improvements including new dishwasher, carpeting, sunporch and garage. [10] Pursuant to an interim order, Mr. Goyetche was paying spousal support of $800 monthly. Mrs. Goyetche could not reside in the home without the maintenance continuing. Mr. Goyetche saw her continued living in the home as untenable, if it required him to continue support and mortgage payments indefinitely. He saw the sale of the home as solution to the dilemma. Mrs. Goyetche would not agree to sell the home. Matters were at an impasse. Their situation required judicial intervention. Since ceasing employment, Mr. Goyetche has maintained himself on modest pension and investment income. To this point he has had to live with relatives. Primary in Mr. Goyetche’s mind was to get his name off the title to the house and the mortgage, and see to the quick return of certain valuable personal belongings. Mrs. Goyetche’s troubles were equally pressing. She had been cut off her husband’s medical insurance coverage. She needed spousal support because her social assistance disability pension had been terminated when she married, and she wouldn’t receive any further income until she starts receiving old age security and CPP at age 65 on June 5, 2006. She wanted title to her house back. It was in this context that Mr. Goyetche applied for an interlocutory order that the home be sold. It was obvious to the judge and the parties that it would be impossible for Mrs. Goyetche to maintain the matrimonial home with its attendant monthly mortgage obligations without financial assistance. Evidently Justice Scanlan saw no alternative but to order its immediate sale. [11] The documentation and testimony at the hearing make it plain that three simple matters drove Mr. Goyetche’s application: first, he wanted to stop paying support to his wife; second, he wanted his name “off” the mortgage on the matrimonial home so that he could then finance his acquisition of new residence for himself; and finally, he wanted returned his surround sound stereo system and certain valuable collector’s items, including an antique knife and an autographed Mickey Mantle baseball. [12] There was no mention of any division of matrimonial assets in the interlocutory notice filed by the petitioner on April 13, 2005. That request for relief only came up in an exchange between the judge and Mr. Goyetche’s lawyer during the hearing. This suggestion obviously troubled Justice Scanlan as can be seen in this extract during Mr. Goyetche’s direct examination when questioned by his own counsel: MR. BEGIN Q. you’re now caught up to date and you paid $800 per month up to and including the June of 2005, is that correct? A. November is when started paying $400. Before that, it was verbal agreement that we had made on paying the 800. had offered to pay the $800, plus $500 mortgage. And asked for my stereo and surround sound system, and as soon as received it, the $800 would continue. And was never offered any kind of concession on that. THE COURT So the order that was in place, though, as understand it, says $800 per month starting February the 14th, 2005. THE COURT But you’re saying you only paid 400 month? A. In November, yes. started in THE COURT Okay. A. in November when told her that as soon as received my equipment, that the $800 would be followed and paid up to date immediately. A. am well, I’m caught up with full payments on April, May and June, and still owe 400 from March and February. THE COURT Okay, that’s what thought you said in the first instance, so. MR. BEGIN So just February and March are 400, all the rest are $800, correct? A. Yes. Q. Okay. And on top of that, sir, you’re paying $535 month on mortgage? Q. And you’ve done it since separation. Q. And you’re also asking the Court today to return certain equipment? A. Yes. Q. And can you advise His Lordship what equipment or possessions you’re looking for? A. I’m looking for my stereo system that purchased in 1999 and my surround sound system. And on top of that, have an autographed Mickey Mantle baseball, safety award millennium silver dollar uncirculated, and collector an American collector knife that was absconded, and I’ve never been able to find it. THE COURT have the autographed baseball, collector’s knife. What else was it? And stereo and surround sound. MR. BEGIN millennium uncirculated silver dollar safety award. THE COURT Safety award silver dollar. And what else? Did miss something? A. have Bowe’s [(sic) BOSE] stereo system. THE COURT Yeah, have that. Q. In paragraph 13, you talk about not being able to afford home until you have your name off the mortgage in the matrimonial home. A. That’s correct. Q. Just tell His Lordship what you’ve done or what you’ve tried to do in relation to that? A. Well, didn’t know how stood as far as buying new furniture to relocate myself in an apartment building. was told by some people that if paid and bought all that, that would be included into marriage and would have to declare that as assets which would have to be divided. So ended up had uncles and aunts that were good enough to let me stay there until this problem had been solved so that could get on with my own life. And so I’m paying those people in lieu of apartment living or house buying. Q. But are you able to get mortgage, sir, on new home while your name is on the home on Guest Drive? A. would not be able to, no. don’t believe. THE COURT Counsel, aren’t we dealing there with division of matrimonial property. Are you asking me to make final division of property here today? And are you not asking me to do something which really don’t have authority to do and that is to have the bank release him from mortgage? MR. BEGIN We’re asking for an order to sell the home, My Lord, is what we’re asking for. Interestingly, when we were here before think it was Justice Cacchione Mr. Lederman said, Geez, you know, we basically what Your Lordship just said, aren’t we almost dealing with the divorce? And that’s why it was put over to today so we could deal with the various issues. Whatever happens today is pretty much the [order?] think my friend will confirm that. See most of the assets [inaudible] THE COURT Do have another application on file other than Okay, there are two applications. For the 13th and 21st then, of April. Okay, good. Sorry. MR. LEDERMAN Maybe if could just clarify what meant when made that comment. It struck me that when this application was brought, that what my friend was looking for basically was determination of all issues in dispute between these people [on an interim basis?] in Chambers’ Application. What asked Justice Cacchione to do was give us date for the divorce itself so we could deal with everything. But mean, guess it’s six of one and half-a-dozen of the other, but that was my decision. Still is. But we’re here so if we can deal with it, well, perhaps we should. Put this thing [inaudible] THE COURT No, the only concern had, counsel, was as was digging through the file, got to the application of April 21st and assumed that’s what we were proceeding on. And only when you raised did realize in terms of the history of the proceedings that there’s another application before the court. And assume that we’re hearing them both now. MR. BEGIN Yes, My Lord. THE COURT Okay. And that’s why asked, Are you not asking me to do something under the Matrimonial Property Act when it wasn’t really before me. But it is. And that’s pursuant to the April 13th application. MR. LEDERMAN That’s correct. THE COURT That was why asked the question. MR. LEDERMAN Okay. [Underlining mine] [13] The fact is that Mr. Goyetche did not file his application with any expressed intention to claim an equal division of the net proceeds realized upon sale of the matrimonial home. Yet this point has evolved into the principal issue on appeal. It obviously took Mrs. Goyetche’s counsel by surprise. In the portion of the transcript just quoted it would appear that Mr. Lederman resiled to the suggestion, without much protest that the judge address the asset division on the interlocutory application. He now candidly and properly admits that this was mistake on his part. We agree. To quote his factum Mr. Lederman gives this explanation at and 10: 9. It certainly struck me as odd and out of the ordinary to deal with division of property by way of an application that usually deals with interim relief only pending trial. 10. then went on to muse as follows: “But mean, guess it’s six of one and half dozen of the other, but that was my decision. Still is. But we’re here so if we can deal with it, well, perhaps we should.” In retrospect, that was not the appropriate reaction, and should have been more vociferous in my objections to proceeding. [Underlining mine] [14] In our respectful view, there was no evidence to warrant proceeding with the applications in the manner suggested by counsel. We disagree with Mr. Bégin’s submission at the hearing that the value of the house is irrelevant to the issue of its sale and that we ought to uphold the order directing its immediate sale, with the added direction that proceeds be kept in trust until each of their respective interests is determined. In our view, in the unique circumstances of this case, it is unrealistic and unfair to address the issue of selling the house without at the same time taking the value of the house, and the parties’ individual contributions to that value into account when then classifying, quantifying and dividing matrimonial assets. Without knowing the value of the equity remaining in the house, it is simply impossible to say whether the amounts Mr. Goyetche feels he contributed (over and above the increased mortgage) were truly realized in any actual increased value to the property. This was acknowledged by the petitioner himself in cross-examination: Q. So what exactly is your position with regard to that house today? A. Well, don’t know what my position is. was told to get out of there on August 9th. A. I’ve increased the value of that home lot since we were married. Q. Okay, you realize she has no way of raising funds to get A. Well, that’s wish she did and then we wouldn’t be into this situation. Q. Yeah. Do you have any idea of what the increase in value has been? No, sir. I’m not into real estate; have no idea. would have to have professional go and appraise it. [Underlining mine] [15] At no time does Mr. Goyetche quantify the division of property he is looking for, let alone express the view that he is seeking an equal division of all matrimonial assets, or specifically half of the home equity. We see this in the following exchange between Mr. Goyetche and Mr. Lederman during cross-examination: Q. Okay, well, are you prepared to sign the title back to her? A. Well, I’m prepared to sign the title over back to her providing get some of the money that put into it when we were married. [16] At one point in his judgment the Chambers judge writes: If the property is worth $170,000.00 as Mr. Goyetche suggested We can find no substantiation for such sum in the record. At one point in his evidence, Mr. Goyetche opined that the house might be worth $150,000.00, but its actual value was never properly established. [17] It is unfortunate that the hearing went off track with an approach to the proceedings taken at the behest of counsel. This ultimately led to an obvious and immediate injustice to the appellant. The fair division of property between the parties, including the matrimonial home, should only be decided upon proper record, with all assets of the parties considered and when both Mr. Mrs. Goyetche have been given the opportunity to present their evidence. This should at the very least include professional appraisal; an accurate accounting of mortgage payments with the current balance shown; documentation verifying the renovations and improvements made to the home (with available receipts); and evidence concerning Mr. Mrs. Goyetche’s respective contributions to those efforts, bearing in mind the “presumption” favouring an equal division pursuant to sections 12 13 of the Matrimonial Property Act, R.S.N.S. 1989, c. 275. [18] We will intervene so as to correct a patent injustice. However, we wish to ensure, as best we can in the circumstances, that proceedings are not delayed and that the parties move with all dispatch to arrange for an expedited rehearing, should that be necessary. [19] We would therefore: (i) allow the appeal; (ii) temporarily vacate ¶ 1 Justice Scanlan’s order dated July 19, 2005 so as to permit the parties a reasonable opportunity to make timely alternative arrangements to resolve the matters in issue, consensually, short of selling the matrimonial home. This might include, for example, Mrs. Goyetche arranging for refinancing of her equity in the home in order to settle payment of Mr. Goyetche’s interest. Should those efforts prove unsuccessful, of Justice Scanlan’s order will be restored and reactivated effective May 30, 2006, thereby authorizing the immediate sale of the matrimonial home without delay or impediment by either party (for clarity, that provision is reproduced herewith); 1. THAT the matrimonial home at 70 Guest Drive shall be put up for immediate sale. THAT Eileen Goyetche shall cooperate fully with the real estate agent for the purpose of permitting the real estate agent to prepare the home for listing, and Eileen Goyetche will further cooperate fully with the real estate agent for all showings. (iii) direct that Mr. Goyetche’s obligation to continue paying the mortgage on the matrimonial home shall continue, under this Order, only until the earlier of either the sale of the matrimonial home, or June 2, 2006 (being the day after the June mortgage payment is due). This provision does not, however, alter the legal responsibilities either party may have to the bank under their mortgage, for payment of the monthly mortgage amounts or the principal secured; (iv) strike of the said order (for clarity, that provision is reproduced herewith); 8. THAT subject to the previous paragraphs, the equity in the matrimonial home shall be divided equally between both parties after the payment of legal fees and real estate commission. (v) direct that the case be remitted to the Supreme Court on an expedited basis for rehearing and proper determination (should such rehearing be necessary) based on these directions, which hearing should include final determination on the apportionment of all assets of the parties; (vi) direct that on any final division of assets the judge shall be at liberty but not obliged to include the value of the personal items already determined to belong to Mr. Goyetche, no appeal having been taken with respect to that allocation. [20] We see no reason why the matter could not be heard again by Justice Scanlan, should his schedule permit it. Findings of credibility were entirely within his province and do not require any comment from this Court, should he choose to take up the case again. They may have no bearing at all on the matters yet to be decided. The facts and history of the case are obviously well known to him and it might accelerate these proceedings and bring about more timely conclusion if he were able to hear it. Otherwise the matter could be directed to any other member of the Supreme Court. [21] In the unusual circumstances of this appeal, Mr. Goyetche shall have costs in the amount of $1,500 inclusive of disbursements, in any event of the cause, but not payable until the earlier of either the sale of the matrimonial home, or final settlement of the issues outstanding in this matter. Saunders, J. A. Concurred in: Bateman, J. A. Hamilton, J. A.

In the context of a divorce proceeding, the husband filed an interlocutory application for, inter alia, the termination of spousal support, and the sale of the matrimonial home. The Chambers judge ordered that the matrimonial home be sold and the assets equally divided between the spouses. The wife appealed. Appeal allowed; certain provisions of the Order struck or temporarily lifted to permit the parties a reasonable opportunity to make timely alternative arrangements to resolve the matters in issue consensually, short of selling the matrimonial home; the court's intervention was necessary to prevent a patent injustice. There was no mention of any division of matrimonial assets in the notice filed by the husband and in the unique circumstances of this case, it was unrealistic and unfair to address the issue of selling the house without at the same time taking into account its value and the parties' individual contributions to that value.

d_2006nsca24.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2011 SKQB 49 Date: 2011 01 28 Docket: Q.B.G. No.1698 of 2010 Judicial Centre: Saskatoon IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH BETWEEN: VARINDER SAHI and THE UNIVERSITY OF SASKATCHEWAN, DR. WILLIAM ALBRITTON in his capacity as Dean of the COLLEGE OF MEDICINE of the UNIVERSITY OF SASKATCHEWAN and DR. GORDON ZELLO in his capacity as Chair of, THE BYLAWS COMMITTEE OF THE COUNCIL OF THE UNIVERSITY OF SASKATCHEWAN representing all members of the said Committee RESPONDENTS Counsel: Andrew M. Mason for the applicant Varinder Sahi Catherine A. Sloan for the respondent University of Saskatchewan JUDGMENT MILLS J. January 28, 2011 INTRODUCTION [1] The applicant was an undergraduate medical student at the University of Saskatchewan (“University”), who was required to discontinue his studies for failure to meet academic standards for promotion. The applicant followed the appeal procedures found in the College of Medicine and University, but was unsuccessful throughout. He brings this certiorari application to quash a decision of the Academic Appeals Committee of the College of Medicine, and of the University Bylaws Committee of Council. On the assumption that his applications will be successful, he seeks an order reinstating him as a student at the College of Medicine pending resolution of his appeal. BACKGROUND FACTS [2] The respondent University provides useful and accurate summary of the relevant facts which have paraphrased as follows: a. Undergraduate medical education at the University is four-year course leading to an MD designation. license to practise medicine follows after post-graduate medical training is completed. b. For the academic year 2009-10, the applicant was in Phase of the course. Due to previous academic difficulties, Mr. Sahi had been required to repeat both Phase and Phase C, and consequently entered Phase on probation. c. In his second attempt at Phase C, Mr. Sahi again failed to meet the minimum academic standards for promotion to Phase D. d. Pursuant to College of Medicine processes, the Phase Committee then met and considered recommendations respecting promotion to the next phase. On January 7, 2010, the Phase Committee recommended that Mr. Sahi be required to discontinue studies. Dr. Linassi served as chair of the Phase Committee. e. Pursuant to College of Medicine processes, the Undergraduate Education Committee (“UEC”) then met and considered the Phase Committee recommendation. Mr. Sahi was invited to attend the UEC meeting and made representations both oral and written. On January 15, 2010, the UEC upheld the recommendation that Mr. Sahi be required to discontinue his studies. Dr. Linassi acted as chair of the UEC. f. Mr. Sahi then appealed his expulsion to the College of Medicine Academic Appeals Committee. The Dean of the College of Medicine convened three-person committee to investigate. The appeals procedure requires the chair of the UEC to provide written record of the reasons for discontinuance and requires the appellant student to provide written summary of his/her position. g. The appeal procedure to the College of Medicine Academic Appeals Committee is found in the University’s procedure for Student Appeals in Academic Matters handbook which reads as follows: V. FACTORS OTHER THAN SUBSTANTIVE ACADEMIC JUDGMENT This section deals with matters not directly involving substantive academic judgment which, however, may affect student’s academic standing or status. (a) student who alleges that assessment of her or his academic work or performance has been negatively affected by factor not involving academic judgment of the substance of the work or performance shall deliver to the dean, not later than 30 days from the date the student is informed of the assessment, written statement of the allegation and request for review of the matter. The department head or dean may extend the period of time to submit the written statement. (b) The dean shall instruct the department head to arrange for an informal investigation of the allegation. In non-departmentalized college the dean shall arrange for such an investigation. The investigation shall be carried out as expeditiously as possible. (c) The dean shall inform the student in writing as to the outcome of the investigation. If the student is not satisfied with the outcome, he or she may initiate an appeal as provided in VI below. h. The College of Medicine Academic Appeals Committee held two preliminary meetings to review the material and acquire more information as it related to the issues at hand. The Committee then conducted hearing of the appeal and as required had representative of the UEC, representative of the Phase Committee and the applicant present. This Committee received submissions and responded to questions from the Committee. The Committee reported to the Dean of the College of Medicine that the applicant’s requirement to discontinue studies be upheld. i. The applicant was dissatisfied with the decision of the College of Medicine Academic Appeals Committee and relying on Part VI of the University’s policy, launched further appeal. Part VI reads as follows: VI. APPEALS DEALING WITH MATTERS OTHER THAN SUBSTANTIVE ACADEMIC JUDGMENT 1. Grounds for an Appeal (a) student may appeal as hereinafter provided decision affecting her or his academic standing on the following grounds only: (i) alleged failure to follow procedural regulations of the relevant college or the University dealing with assessment of students’ academic work or performance or administrative decisions or alleged misapplication of regulations governing program or degree requirements; ... (iii) alleged violation of the University Discrimination and Harassment Prevention Policy where the alleged violation affected assessment of the student’s academic work or performance; (b) student has no right of appeal under these rules with respect to an academic judgment of the written or non-written work, performance or activities or with respect to decision relating to the provision of deferred or special examinations or other extraordinary methods of assessment unless that judgment or decision is alleged to involve or be affected by factor mentioned in clause 1(a). (c) student has no right of appeal as hereinafter provided until all applicable steps set out in preceding rules have been taken and final decision in relation to the matter has been made as provided in those rules. (d) The determination as to whether or not an appeal falls within paragraph (a) shall be made by the Bylaw Committee of Council. For the purpose of that determination only, the Vice-President (Academic Affairs) of the University of Saskatchewan Students’ Union or in the case of graduate student, the Vice President (Student Affairs) of the Graduate Students’ Association, shall be invited to participate (with vote) in the deliberations of the Committee. The Committee shall make its determination on the basis of: (i) information set out on Form and any supplementary written information provided by the student initiating the appeal; and (ii) written information provided to the Committee by the dean and the faculty member responsible for the course to which the allegation relates; and (iii) any additional information presented to the Committee as provided in the following paragraphs. 3. Appointment of an Appeal Board (a) Upon receipt of notice of appeal, the University Secretary shall send copy of it to Chairperson of the Bylaws Committee. If the Bylaws Committee concludes that the appeal involves permissible ground for appeal as set out herein, the Bylaws Committee shall constitute an appeal board to be composed of three members of Council, one of whom is student. One faculty member of the appeal board shall be named chairperson. The members of the board shall be chosen from roster nominated by the Nomination Committee. j. The applicant’s grounds of appeal under Part VI are restricted to the following: 1) Failure to follow procedural regulations of the relevant college or University dealing with assessment of students’ academic work or performance or administrative decisions and the application of regulations governing program or degree requirements. 2) Discriminatory treatment compared to other students in the course where the alleged discrimination affected assessment of the student’s academic work or performance. 3) Violation of the University Discrimination and Harassment Prevention Policy where the alleged violation affected assessment of the student’s academic work or performance. [3] As required by the appeal procedure in Part VI, para. 1(d), the appeal was referred to the Bylaws Committee of Council for the purpose of determining whether or not this appeal falls within para.1(a) of the policy. The applicant appeared before the Bylaws Committee and made representations. The factual allegations were that: a. The College of Medicine failed to follow procedures by denying him an opportunity to meet with faculty member in order to raise his mark; b. He was discriminated against as he was not given an opportunity for remediation; and c. He alleged that Dr. Linassi, who was chair of the Phase Committee and UEC, was biased towards him and discriminated against him affecting the College of Medicine process. [4] The Bylaws Committee’s decision rejecting the application for an appeal to the University Council reads in part as follows: ... As required by the regulations, the committee met to determine whether or not your appeal of the decision of the College of Medicine with respect to your academic standing falls within paragraph (a) of Section VI.1. The committee carefully considered the material submitted by you and by the College, as well as the verbal presentation you made to the committee. Having reviewed the information before them, members of the committee have determined that hearing will not go forward. In making this decision, the committee did not make an attempt to judge the merits of your case except insofar as they relate to procedural matters and issues of fairness, including alleged discriminatory treatment and violation of the university’s Discrimination and Harassment Prevention Policy. It is the finding of the committee that you have already been given an opportunity to present your case, including your allegations of procedural unfairness and discriminatory treatment, to properly constituted academic appeals committee with the authority to hear and remedy such allegations; these issues were clearly raised in the material you placed before the appeal body in the College of Medicine. The bylaws committee determined that there was no evidence of procedural irregularity, unfairness or discrimination in the constitution or proceedings of the Academic Appeal Committee of the College of Medicine, or on the part of the Dean in accepting their finding and upholding the original ruling. [5] Under the University policy, that then ended the applicant’s appeal process within the University and this application was brought. LEGAL PRINCIPLES TO BE APPLIED [6] The parties agree as to the legal approach to be adopted by the court in analysing this application. Both parties rely on the decision of Barclay J. in Houston v. University of Saskatchewan (1994), 1994 CanLII 4898 (SK QB), 117 Sask. R. 291, [1994] W.W.R. 387 (Q.B.), where at para. 17 he states: [17] An excellent review of the law with respect to matters involving grievances between students and university is contained in the case of Polten v. University of Toronto (1975), 1975 CanLII 709 (ON SC), 59 D.L.R. (3d) 197 (Div. Ct.). The dispute here arose as result of doctoral student’s refusal to change his thesis and the university’s eventual rejection of his formal paper. The judgment of Weatherston, J., is regularly cited as authority for the non-interventionalist approach of the courts towards such disputes. The court held that the standards for University degree and the assessment of student’s work are so clearly vested in the university that the courts have no power to intervene merely because it is thought that the standards are too high, or that the student’s work was inaccurately assessed. However, the prerogative writs of certiorari and mandamus are available to student who has been denied natural justice in respect of his examinations. The university has been entrusted with the higher education of large number of the citizens of the province. This is public responsibility that should be subject to some measure of judicial control. [7] The measure of judicial control referenced by Barclay J. in Houston was followed by Rothery J. in Mikkelsen v. University of Saskatchewan (Joint Senate-Council Board of Student Appeals), 2000 SKQB 45 (CanLII), 191 Sask. R. 53, where she stated at para. [33] In ordinary circumstances, upon finding breach of natural justice on the basis of denial to be heard, the court would quash the decision of the tribunal and order that the matter be heard according to law. [8] The University submits that the court is not able to interfere in the applicant’s academic assessment and that the applicant can only obtain relief from the court if the proper procedures were not followed. The University submits they were. ANALYSIS A) College of Medicine Academic Appeals Committee [9] The applicant argues that the Academic Appeals Committee did not investigate the allegations made by the applicant and file report on the allegations as required by the appeals process. am not prepared to accept this argument of the applicant. The return of the record by the chair of the College of Medicine Academic Appeals Committee shows the Committee obtained all relevant information as it related to the nature of the appeal by the applicant. It held hearing on March 31, 2010 at which the applicant, among others, gave evidence regarding previous decisions made. report was then prepared and provided to the Dean of the College of Medicine. It should be noted that in the process contained in Part V(b), it was to be an informal investigation of the allegations. From the return of the Academic Appeals Committee, it is obvious that thorough investigation and analysis of the complaints were made and dismissed. The applicant’s allegation that this did not factually occur is simply wrong. B) Bylaws Committee [10] The applicant submits that the jurisdiction of the Bylaws Committee is to examine the appeal to ensure that it comes within the scope of Part VI appeal and if so, to remit the matter further to an appeal board for consideration under para. of Part VI. The applicant concedes that it is not sufficient that the wording used in the appeal matches an enumerated ground of appeal, but that the Bylaws Committee is entitled to examine the record to ensure the substance of the appeal matches one of the appropriate grounds. The applicant does not suggest, that he is entitled to an appeal as long as he checks off the right boxes. The respondent submits that the Bylaws Committee is empowered to determine whether further appeal is to be granted, and that there are no limits on the Bylaws Committee’s jurisdiction to determine the question. do not accept the respondent’s submission. The jurisdiction of the Bylaws Committee as contained in Part VI, para. 1(d) is to determine whether or not an appeal falls within para. 1(a). review of the record by the Bylaws Committee to determine if the substance of the appeal meets the criteria of Part VI.1(a) is within its mandate. That is the extent of the authority granted to the Bylaws Committee. [11] The Bylaws Committee in this situation stated that it was not attempting to judge the merits of the case “except as it related to procedural matters and issues of fairness, including alleged discriminatory treatment and violation of the University’s Discrimination and Harassment Prevention Policy.” On the basis of this comment alone, concern is raised that the Bylaws Committee has exceeded its jurisdiction, by reviewing the merits of the appeal as it relates to those underlying matters. [12] The stated findings of the Committee advanced the issue of concern to one of intervention. The Committee states: ... you have already been given an opportunity to present your case, including your allegations for procedural unfairness and discriminatory treatment, to properly constituted academic appeals committee with the authority to hear and remedy such allegations; these issues were clearly raised in the material you placed before the appeal body in the College of Medicine. In simple terms, the Bylaws Committee has stated you do not get full appeal because the issues raised have been already decided against you. The Bylaws Committee seems to misunderstand the purpose of the appeal is to review the previous decisions that were made insofar as they come within the parameters set out in para. 1(a). This last statement by the Bylaws Committee clearly suggests that they have taken it upon themselves to review the previous decisions made and draw the conclusion that they were made fairly and properly. That may be so, but that is not the issue that the Bylaws Committee is to examine. This last statement clearly leads to the conclusion that the Bylaws Committee has determined the merits of the applicant’s appeal and therefore a full appeal board was not necessary. [13] There is nothing in the policy to suggest the Bylaws Committee has such power. In fact, if the power existed in the Bylaws Committee to determine the appeals on the merits, there would be no need for it to operate as vetting step, and of course no need for the establishment of an appeal board. There is limit on the Bylaws Committee’s jurisdiction to determine whether an appeal will be heard, and that limit is prescribed in para. 1(a). [14] The Bylaws Committee has exceeded its jurisdiction in this regard and its decision is therefore quashed. [15] It is not appropriate however for me to usurp the function of the Bylaws Committee and review the material to determine if in my opinion, the matter should be remitted to the appeal board under Part V, para. 3. The matter is returned to the Bylaws Committee for a decision according to law that is whether the applicant’s appeal falls within para. 1(a) of Part VI, the policy on student appeals and academic matters. [16] The last relief sought is for interim relief that the applicant be reinstated to his studies. [17] Although there is precedent for that occurring (see Mikkelsen, supra, and Wong v. University of Saskatchewan, 2006 SKQB 405 (CanLII), 287 Sask. R. 4), am not satisfied this is appropriate in these circumstances. In both those cases, the learned chamber judges referred to special or exceptional circumstances. Those do not exist in this case. The applicant has marginal academic record. take judicial notice of the fact that the University has limited number of placements within its College of Medicine, and that the training of physician is lengthy and expensive process vis-à-vis the University. The respondent argues that the status quo as it relates to the applicant is of an individual forced to discontinue his studies for poor performance. To reinstate him and potentially displace another student or require the College of Medicine to train on a potentially temporary basis a marginal student is not appropriate. Although clearly have the jurisdiction to order such reinstatement, find no compelling reason why should. The applicant has established there has not been proper disposition of his right to appeal. He has not attempted to nor is it the proper forum for me to determine that if his appeal should go forward, whether it would be successful. The respondent is correct in asserting that the applicant is seeking an order of mandamus in effect promoting him to the phase of instruction that he has not been promoted to by the College of Medicine. The respondent’s argument that should take note of the comments of Barclay J. in Houston, supra, are well made. This part of the application is dismissed. [18] The applicant has been successful quashing the decision of the Bylaws Committee and is entitled to some costs. The amount of the costs awarded is tempered by the fact that there was significant effort and material filed in relation to those portions of the application which were dismissed. As such, fix the costs payable by the respondent to the applicant at $500 payable within 30 days.

The applicant was a student at the University of Saskatchewan in the College of Medicine. He was required to discontinue his studies for failure to meet academic standards for promotion. The applicant appealed his dismissal and was unsuccessful throughout. He applied to the Court for an order of certiorari to quash the decision of the Academic Appeals Committee and the University Bylaws Committee Council and an order reinstating him as a student at the College of Medicine pending resolution of his appeal. HELD: The Court found that the Bylaws Committee Council exceeded its jurisdiction by reviewing the previous decisions made and drawing the conclusion that they were made fairly and properly. The Bylaw Committee determined the merits of the applicant's appeal and determined that it was not necessary to convene a full appeal board. There is nothing in the University policy to suggest that the Bylaws Committee has that power. The Bylaws Committee has exceeded its jurisdiction in this regard and its decision is quashed. The matter is returned to the Bylaws Committee to determine whether the applicant's appeal falls within the policy on student appeals and academic matters. The portion of the application requesting reinstatement of the applicant as a student pending the resolution of his appeal is dismissed. The applicant has a marginal academic record and there are a limited number of placements in the College of Medicine. It does not make sense to displace another student or require the College of Medicine to train a marginal student on a potentially temporary basis.

9_2011skqb49.txt

nan IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2016 SKPC 157 Date: December 1, 2016 Information: 36657854 Location: Saskatoon Between: Her Majesty the Queen and Darlene Josephine Weichel Appearing: C. Bliss For the Crown J. Watson and Bruce Gordon (student-at-law) For the Accused JUDGMENT M.M. BANIAK, [1] The accused, Darlene Josephine Weichel, stands charged that on or about the 19th day of March, A.D. 2016 at or near Saskatoon, Saskatchewan did: 1) while her ability to operate motor vehicle was impaired by alcohol or drug, have the care or control of motor vehicle, contrary to s. 255(1) and s. 253(1)(a) of the Criminal Code; and 2) having consumed alcohol in such quantity that the concentration thereof in her blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, have the care or control of motor vehicle, contrary to s. 255(1) and s. 253(1)(b) of the Criminal Code. [2] The Crown’s first witness was Constable Brent Vanthuyne, six year member of the Saskatoon Police Service. He presented as qualified technician who attended on the accused to administer the breath tests. The result of the tests are contained in the Certificate of Qualified Technician (Exhibit P-1). [3] He testified that the accused arrived at the detachment at 6:21 a.m. and was escorted to the phone room by Constable Erickson. The observation period commenced at 6:45 a.m. At 6:47 a.m. Constable Vanthuyne entered the observation room. According to his testimony, the accused told him that she had two shots that night. [4] After the observation period, the accused was taken to the breathalyzer room. She provided suitable sample after eight attempts. [5] The test report sheet (Exhibit P-2) indicates that the testing started at 7:05 a.m. and the first suitable sample was obtained at 7:14 a.m. The second test started at 7:35 a.m. and the second suitable sample was obtained at 7:38 a.m. [6] The second Crown witness was Constable Richard Erickson, six and one-half year member of the Saskatoon Police Service. On March 19, 2016, he was on duty. With him was Constable Davis, recent recruit. [7] Constable Erickson arrived at the scene (Circle Drive and Avenue C) at 5:20 a.m. light standard had been knocked over. He first approached and spoke with male individual named Istifo. At 5:24:40 Constable Erickson approached the truck where the accused and another female were sitting. At 5:24:57 he said to the females: “I can already tell you’ve been drinking”. He testified that the vehicle was running; the signal light was on, and the accused was behind the wheel. He could smell alcohol emanating from the cab. According to his testimony, he observed that the accused had glassy red eyes and that she had “trouble keeping eye contact with me”. He could not remember if the accused admitted to drinking, but he suspected that she was drinking. [8] At 5:25:29 he asked Constable Davis to get the ASD. The breath sample into the ASD was provided at 5:35 a.m. The accused was arrested at 5:36 a.m. Thereafter, Constable Erickson provided the rights to counsel at 5:39 a.m., right to silence caution at 5:39 a.m., breath sample demand at 5:41:30 and another reading of the breath sample at 5:42:30 (after explaining to the accused that they would have to wait to clean the place up before leaving). According to Constable Erickson, he was unable to get another police unit to attend at the scene. [9] During cross-examination, Constable Erickson acknowledged that another police unit, driven by Constable Wiebe arrived at the scene at 5:30 a.m. and enquired if he could do anything. He was advised to assist recruit Davis. At some point the individual known as Istifo, who was also being investigated for impaired operation of vehicle, was placed in Constable Wiebe’s vehicle. [10] Constable Erickson testified that he proceeded to fill out some paperwork required by SGI and that he wanted to wait for tow truck. Finally, he left the scene at 6:12 a.m. In his words, “I could not have left the scene any sooner”. [11] Arrival time at the detachment was 6:17 a.m. and the “booking” process began at 6:18 a.m. The accused then used the bathroom facility after which she was taken to the phone room at 6:29 a.m. She spoke with Legal Aid duty counsel from 6:39 a.m. to 6:44 a.m. The observation period commenced at 6:45 a.m. [12] As testified to by Constable Vanthuyne the testing started at 7:05 a.m. Essentially, therefore, the time elapsed from arrival at the detachment (6:17 a.m.) To time of testing (7:05 a.m.) was 48 minutes. [13] The time spent at roadside, when the accused was detained, 5:28 a.m. to 6:12 a.m., was 44 minutes. Position of Parties [14] Defence advance two pronged argument. Firstly, it argued that the police officer lacked the reasonable suspicion grounds to make an ASD demand pursuant to s. 254(2) of the Criminal Code. Without the ASD results there would not be, therefore, the reasonable grounds for breath test demand. [15] In support of its argument, defence points out that the police officer essentially decided that he had the reasonable suspicion grounds after interacting with the accused for mere 14 seconds. He came to that conclusion without taking the time to properly ascertain the indicia of impairment. Within 45 seconds of coming upon the accused he made the demand. In support of his suspicion, the police officer testified that there was smell of beverage alcohol emanating from the truck, that the accused worked in the Sardinia restaurant and that she had glassy eyes and that she did not maintain eye contact with him. [16] The accused had no difficulty walking or talking and there was no evidence of the accused’s drinking history prior to the demand or, for that matter, any admission of drinking prior to the ASD demand. [17] Secondly, defence argued that the breath tests were not taken as “soon as practicable” and as such the Crown cannot rely on the presumption in s. 258(1)(c)(iv) of the Criminal Code. [18] The accused was arrested at 5:36 a.m. and the police officer did not leave the scene till 6:12 a.m., some 36 minutes later. This delay was not satisfactorily explained. Once at the police station the pace did not pick up. The arrival time was 6:21 a.m., the first test taken at 7:14 a.m., some 53 minutes later. [19] This delay was also unreasonable according to the defence. [20] The Crown takes the position that the reasonable suspicion argument fails on two grounds. [21] Firstly, if defence maintains that Constable Erickson lacked the reasonable suspicion to make the ASD demand that would result in s. Charter breach. In order to argue the s. breach, it was necessary to state this in the Charter notice. Defence failed to do so. [22] Secondly, Crown submits that the reasonable suspicion standard is very low and having regard to the evidence, and the existing law, that threshold has been met. [23] With respect to the issue of whether the tests were taken as soon as practicable, Crown takes the position that there are two time periods that have to be considered the period from arrest to departure to the police station, and the time from arrival at the station to the time the tests were taken. [24] The delay in departing the scene is attributed, according to the Crown to the following: dealing with two suspects at the scene; the need to immobilize the vehicles; and completion of paper work for SGI. [25] The delays, if any, at the police station are satisfactorily explained. The accused had to be booked, she wished to use the washroom, she spoke with Legal Aid duty counsel, and it was necessary to comply with the observations periods. [26] Police are not entitled to embark on an investigation into criminal activity unless they are acting, at the very least, on reasonable suspicion that person is involved or engaged in criminal activity. [27] Various courts, including the Supreme Court, have held that “reasonable” suspicion means something less than belief based upon reasonable and probable grounds.[1] [28] P. Sankoff and S. Perrault, in their commentary entitled “Suspicious Searches: What’s So Reasonable About Them?” describe the concept as follows: [T] he fundamental, distinction between mere suspicion and reasonable suspicion has in the fact that in the latter case, sincerely held subjective belief is insufficient. Instead, to justify such search, the suspicion must be supported by factual elements which can be adduced in evidence and permit an independent assessment What distinguishes “reasonable suspicion” from the higher standard of “reasonable and probable grounds” is merely the degree of probability demonstrating that person is involved in criminal activity, not the existence of objectively ascertainable facts which, in both cases, must exist to support the search. [29] The Supreme Court in Chehil[2] stated clearly that the reasonable suspicion standard is much lower or less demanding than reasonable grounds one: reasonable suspicion means something more than belief based upon reasonable and probable grounds. (para 26) [30] However, although the Court acknowledged the lower standard, it did not hold that reasonable suspicion could be grounded or based on speculation or mere hunch. [31] Karakatsanis J. articulated that objective facts are necessary to support reasonable suspicion: [45] The requirement for objective and ascertainable facts as the basis for reasonable suspicion permits an independent after-the-fact review by the court and protects against arbitrary state action. Under the Collins framework, the onus is on the Crown to show that the objective facts rise to the level of reasonable suspicion, such that reasonable person, standing in the shoes of the police officer, would have held reasonable suspicion of criminal activity. [46] Rigorous judicial scrutiny is an independent review that ensures that the suspicion relied on by the police is supported by factors that are objectively ascertainable, meaning that the suspicion is based on “factual elements which can be adduced in evidence and permit an independent judicial assessment”: P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123, at p. 125. The constellation of facts must be based in the evidence, tied to the individual, and capable of supporting logical inference of criminal behaviour. If the link between the constellation and criminality cannot be established by way of logical inference, the Crown must lead evidence to connect the circumstances to criminality. This evidence may be empirical or statistical, or it may be based upon the investigating officer’s training and experience. [32] At para 47, Madam Justice Karakatsanis made reference to police officer’s training and experience on the Court’s evaluation of reasonable suspicion: [47] An officer’s training and experience may provide an objective experiential, as opposed to empirical, basis for grounding reasonable suspicion. However, this is not to say that hunches or intuition grounded in an officer’s experience will suffice, or that deference is owed to police officer’s view of the circumstances based on her training or experience in the field: see Payette, at para. 25. police officer’s educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard. [33] In this case, Constable Erickson concluded within seconds of encountering the accused that he had reasonable suspicion for an ASD demand. He had no opportunity to observe the accused. He made the demand before asking the accused if she consumed any liquor. He failed, in my view, to articulate the grounds for reasonable suspicion. The reasonable suspicion standard may be law, but it requires something more than mere hunch. [34] Normally, therefore, this would result in the breach of the accused’s s. Charter right and possibly result in the exclusion of the evidence derived, namely the ASD test result. [35] The difficulty in the instant case, however, is that, as the Crown has pointed out, defence did not mention the s. 8 violation in its Charter notice. As such, defence should not be allowed to argue it at the conclusion of the trial. [36] In my view, if Charter issue arises during the course of trial that was not apparent or easily discernible by defence from all of the disclosure provided by the Crown then it is appropriate and proper for the Court to consider, analyse and rule on it. Fairness demands it. [37] In this instance, that is not the case. A rudimentary, or even a perfunctory perusal of the disclosed material would have shown the video-taped interaction between Constable Erickson and the accused at the outset. The issue, as it pertains to reasonable suspicion, was glaringly apparent. The Charter Notice was deficient in this regard and will not consider the possible breach and conduct an analysis to determine the exclusion of evidence. [38] The second argument advanced by defence is that the breath tests were not taken as soon as practicable. Section 258(1)(c)(ii) of the Criminal Code requires that where breath sample of the accused has been taken pursuant to demand made under s. 254(3): (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, [39] Section 258(1)(c)(iv) states that: 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 analyses were made and at the time when the offence was alleged to have been committed [40] In order for the Crown to rely on the presumption in paragraph (iv), it has to establish compliance with paragraph (ii). [41] The relevant times are as follows: 5:19 a.m.: arrival at scene; 5:37 a.m.: arrest of accused for impaired driving; 6:12 a.m.: departing scene; 6:21 a.m.: arrival at Detention centre; and 7:14 a.m.: first sample taken. [42] Simply put, from the time of arrest to the first sample, ninety seven minutes elapsed. This time frame, in my view, needs to be analysed at two interval segments. The first time frame was from time of arrest (5:37 a.m.) to time of departure from the scene (6:12 a.m.) - 35 minutes. The second period was the time from arrival at the detention centre (6:21 a.m.) to the taking of the second sample (7:38 a.m.) - 77 minutes. [43] The term “as soon as practicable” has been addressed on numerous occasions.[3] In Vanderbruggen the Ontario Court of Appeal (para 12) held that “the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably”. [44] Our Court of Queen’s Bench in Beaton relied on the Court of Appeal’s decision in Carter (para 9): The requirement that the samples be taken as soon as practicable is one which must be applied with reason. As read the section, as long as the delay, if there is one, is explained to the satisfaction of the judge, there may be reliance on the presumption in paragraph (iv) as long as the samples are taken within the two hour limit. It would only be when the learned trial judge concluded there was delay not satisfactorily explained, or such delay prejudiced the accused that the court would deny the prosecution the right to rely on the presumption in paragraph (iv). [45] In Beaton, the Court held that the 15 minute delay was satisfactorily explained and as such “was not objectively unreasonable” (para 34); however, it did cite number of decisions (para 40) where undue delay was argued successfully: nan For example, in Prior, 2011 SKPC 193 (CanLII), the delay was 56 minutes and, in the words of the trial judge at para. 24, “…was so lengthy that, without satisfactory, reasonable explanation, it must result in the loss of the presumption [that the test results were proof of the accused’s blood alcohol level at the time of driving].” In Carrier,2010 SKPC 118 (CanLII), 363 Sask 76, 63 minutes had elapsed, and, finding that 39 of those minutes was an “unexplained delay,” the prosecution could not rely upon the presumption. In Dion, 2010 SKPC 76 (CanLII), the trial judge found delay of 57 minutes as “unreasonable” and the Crown failed to sufficiently explain the delay. [46] The sequence of events once the accused was brought to the detention centre is as follows: 6:21: accused brought to detention centre; 6:29: accused uses washroom (with assistance of female escort); 6:36: accused enters phone room; 6:39 6:45: accused speaks to counsel; 6:45: commencement of first observation period; 7:04: accused moved from observation room to breathalyzer room; 7:14: first successful sample taken; 7:30: second successful sample taken. [47] Even though this entire process took approximately an hour to complete, do not see any undue or unexplained delays. The accused spent some seven minutes in the washroom; she spoke for six minutes with counsel; it took nine minutes to take the first sample as there were several unsuccessful attempts to provide suitable sample (Exhibit P-2). These 22 minutes added to the observation periods account for most of the time at the police station. At any rate, do not find that the police acted unreasonably or that they failed to explain any minor delays. [48] The first time frame, following the accused’s arrest, is more problematic. In this instance, after Constable Erickson arrested the accused (5:37 a.m.) the police vehicle remained at the scene for 35 minutes before proceeding to the police station (6:12 a.m.). [49] Let us first examine the reasons provided for the delay. Constable Erickson was partnered up with Constable Davis, young recruit who was taking part in his first impaired investigation. Once they arrived at the scene, they had to deal with two drivers, the accused and an individual named Istfo, who was also suspected of impaired driving. Mr. Istfo’s vehicle collided with light standard, which blocked part of the roadway. The two officers placed pylons around the light standard to alert other motorists of possible hazard. Within minutes another police cruiser, operated by Constable Wiebe, arrived at the scene. [50] Apparently this was busy part of the day and no other cruisers were available. In addition to administering the ASD test, Constable Erickson occupied himself by completing paper work (SGI forms and Vehicle Impoundment Forms) and calling City of Saskatoon services and tow trucks. Constable Erickson testified that he could not leave the scene any sooner than he did. [51] He testified that suspect Weichel and suspect Istfo could not be put in the same vehicle for transport to the police station as he did not want to compromise the investigation, and, secondly, he doesn’t like to have male and female prisoners together. There was no information provided as to whether this is the Saskatoon Police Service policy in place, or if this is simply his practice. At any rate, this explanation is less than satisfactory when one considers that Constable Wiebe arrived at the scene at 5:30 a.m. and that it was Wiebe who transported Istfo to the police station. [52] Constable Erickson testified that Constable Davis was recent recruit and this was his first impaired investigation. What was not explained was whether Constable Davis could not have remained at the scene if it was necessary to do so until the tow truck or trucks arrived. From the video it appeared that the traffic flowed smoothly and that the pylons placed around the fallen light standard were seen by the other motorists. There were no injuries; the accused’s vehicle was driveable and she was cooperative. The location, or the scene, has several businesses around and adjacent to it. The vehicle could easily have been parked in one of the parking lots and left there until the tow truck arrived. The Traffic Safety Act (s. 148) requires that motor vehicle be “immobilized or impounded”. It does not mean that it has to be towed away. Parking vehicle in safe place, locking it, and seizing the keys amount, in my opinion, to immobilization. [53] find that there was no compelling reason, or need, to wait for the tow truck especially when there was no indication when one was expected to arrive. [54] There was an apparent lack of sense of urgency. Constable Erickson was told by the accused that she only had two shots; she did not display multiple signs or indicia of impairment and, therefore, if the Crown was to rely on the presumption, it was important to get the accused to the breathalyzer room as soon as practicable. That does not mean that the police have to act at break neck speed, but something more is required that what we saw here. am mindful that sometimes police have to engage in balancing act. When there is hectic accident scene with injuries, ambulances and multiple witnesses the police have to be permitted more leeway. This was not the situation in this case. There were two squad cars and three officers on the scene. I believe the officers could have acted in a more expeditious manner. Constable Erickson’s explanation for not being able to leave the scene till some thirty-five minutes after he arrested the accused is not satisfactory. [55] Secondly, the delay may have prejudiced the accused. The need to take the tests as soon as practicable is to ensure that the accused’s blood alcohol content was as accurate as possible at the time of driving. This is particularly important when the readings are slightly above the legal limit. [56] The importance of samples being taken as soon as practicable was addressed by our Court of Appeal in Burwell, 2015 SKCA 37 (CanLII) at para. 118, [2015] WWR 448: The purpose of s. 258(1)(c) of the Criminal Code is to provide the Crown an evidentiary shortcut to proving impairment. It is fair statement that the “as soon as practicable” criterion was enacted to ensure that the presumption created by the section operates fairly and that the breath testing leads to accurate results. As such it protects against the manipulation or skewing of the results by delaying testing to allow for the absorption of alcohol into the accused’s blood. [57] Having regard to all of the above, I find that the officer’s explanation for the delay was not satisfactory, and further, that the delay prejudiced the accused. [58] That being the case, the Crown is not entitled to rely on the presumption in s. 258(1)(c) of the Criminal Code. [59] The merits of count #1 in the Information were not argued, and, in any event, having regard to the finding in count #2, could not be proven. M.M. Baniak, [1] Kang-Brown, 2008 SCC 18 (CanLII); [2008] [2] 2013 SCC 49 (SCC) (CanLII) [3] Vanderbruggen (2006), 2006 CanLII 9039 (ONCA), 206 CCC (3d) 489; Beaton, 2015 SKQB 58 (CanLII) [Beaton] (approved Vanderbruggen); Carter, (1981) 2063 (SKCA).

HELD: The court found with respect to the following issues: 1) it would not permit the defence to argue the s. 8 violation at the conclusion of the trial because it had not mentioned it in its Charter notice. The Crown disclosed the video-taped interaction between the officer and the accused to the defence at the outset and it was clearly pertinent to the issue of reasonable suspicion, but the defence failed to raise it; and 2) there were two periods of delay and the court was satisfied that the 77 minutes between arrival at the station and the taking of the second sample was satisfactorily explained. However, the court found that first period of 35 minutes between the arrest to the time of departure was not satisfactorily explained. The officer did not act expeditiously and the delay may have prejudiced the accused because when, as here, the readings are slightly above the legal limit, the tests need to be taken as soon as practicable to ensure that the accused’s blood alcohol content at the time of driving is determined accurately. The Crown was not entitled to rely on the presumption in s. 259(1)(c) of the Code.

e_2016skpc157.txt

J. Editor's Note: Addendum released March 9, 1995. Text of addendum appended to original judgment. Q.B. A.D. 1994 No. J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN DAVID LUCAS and JOHANNA ERNA LUCAS and THE MINISTER OF JUSTICE FOR THE PROVINCE OF SASKATCHEWAN for HER MAJESTY THE QUEEN and THE MINISTER OF JUSTICE FOR THE DOMINION OF CANADA for HER MAJESTY THE QUEEN RESPONDENTS R. Parker for the applicant W.K. Tucker, Q.C. Agent of the Attorney General for the Province of Saskatchewan R. Macnab Counsel for the Attorney General of Saskatchewan No one appearing for the Minister of Justice for the Dominion of Canada JUDGMENT HRABINSKY J. February 6, 1995 The applicants (accused) apply for the following relief: (1)A Declaration that sections 300 and 301 of the Criminal Code, constitute an unreasonable limitation of one or more of the rights and freedoms guaranteed by sections 2, and 11(c)and (d) of the Canadian Charter of Rights and Freedoms and by reason thereof are of no force or effect; (2)A Declaration that sections 300 and 301 of the Criminal Code fail to describe an offence known in law and by reason thereof are of no force or effect. FACTS The accused were arraigned before me on the twocounts in the indictment as follows:That John David Lucas and Johanna Erna Lucas between the 19thday of September, A.D. 1993 and the 22nd day of September,A.D. 1993 at or near [Q], Saskatchewan did1. publish matter without lawful justification or excuse thatwas likely to injure the reputation of [a police officer] by exposinghim to hatred, contempt or ridicule or that was designed toinsult [the officer], thereby committing a defamatory libelcontrary to S.301 of the Criminal Code. 2. publish matter without lawful justification or excuse thatwas likely to injure the reputation of [the police officer] byexposinghim to hatred, contempt or ridicule or that was designed toinsult [the police officer] knowing that the matter published wasfalseand did thereby commit an offence contrary to S.300 of theCriminal Code. Both accused plead not guilty to both counts in the indictment. Pursuant to s. 655 of the Criminal Code the accused admitted the following facts: 1.At all times material to this matter, the person [the police officer] referred to in the indictment was [rank] with the City of Police Service and as such as peace officer. 2.On September 20, 1993 at 9:00 A.M. the accused were observed to be walking on public sidewalk in front of the Police Station in Q, Sask. carrying sign which had printed on one side the words "Did [rank] [police officer] just allow or help with the rape/sodomy of an year old" and on the other side the words "If you admit it [the police officer] then you might get help with your touching problem". 3.The accused were accompanied by number of other persons. The sign and the printing thereon were clearly visible to persons passing by and to those looking out of the windows of the Police Station. 4.The Police Station is the place of employment of [the police officer]. 5.The accused were observed by other police officers while carrying the sign. They were recorded on videotape in their activities and then arrested and charged. Pursuant to s. 611(1) counsel for the accused fileda plea of justification consisting of 17 typed pages which,for the purposes of this application, need not be reproduced. Pursuant to s. 611(4) counsel for the Crown deniedgenerally the truth of that plea. THE ISSUES Do ss. 300 and 301 of the Criminal Code (the defamatory libel provisions), or either of them, impose limits on freedom of expression which infringe rights guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms? If either or both ss. 300 and 301 of the Criminal Code constitute limit on freedom of expression, is such limitation justified by s. of the Charter? Do ss. 300 and 301 of the Criminal Code, or either of them, violate s. of the Charter which guarantees the right to liberty and the right not to be deprived thereof except in accordance with the principles of fundamental justice? Do ss. 300 and 301 of the Criminal Code, or either of them, violate ss. 11(c) and (d) of the Charter which provide that person has right not to be compelled to be witness in proceedings against that person and that person has the right to be presumed innocent until proven guilty? THE LAW Sections 300 and 301 of the Criminal Code read: 300. Every one who publishes defamatory libel that he knows is false is guilty of an indictable offence and liable to imprisonment for term not exceeding five years. 301. Every one who publishes defamatory libel is guilty of an indictable offence and liable to imprisonment for term not exceeding two years. The distinction between ss. 300 and 301 of the Criminal Code is that the Crown must prove that person charged under s. 300 knew that the published defamatory libel was false. Falsity is not necessary element under s. 301. person may be found guilty under s. 301 of publishing defamatory libel even if that person honestly believed that the published defamatory matter was true and even if it was in fact true. The definitions of "defamatory libel" and "publishes" are found in ss. 298 and 299 of the Criminal Code. 298. (1) defamatory libel is matter published, without lawful justification or excuse, that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult the person of or concerning whom it is published. (2) defamatory libel may be expressed directly or by insinuation or irony (a) in words legibly marked upon any substance, or (b) by an object signifying defamatory libel otherwise than 299. person publishes libel when he (a) exhibits it in public, (b) causes it to be read or seen, or (c) shows or delivers it, or causes it to be shown or delivered, with intent that it should be read or seen by the person whom it defames or by any other person. It is to be noted that neither of the foregoing sections refers to the truth or falsity of the defamatory libel. Further, ss. 298 and 299 are very broad. Counsel for the applicants submits that broad range of relatively trivial or innocuous material would fall within those provisions of the Criminal Code. Counsel for the respondent concedes that this agree. However, courts have held that criminal sanctions for defamatory libel should be available for serious, not trivial libels. In Gleaves v. Deakin, [1979] All E.R. 497 (H.L.) Lord Scarman stated at p.508‑09: It is, however, not every libel that warrants criminal prosecution. To warrant prosecution the libel must be sufficiently serious to require the intervention of the Crown in the public interest. In Labouchere Lord Coleridge CJ emphasised that both Hawkins and Lord Kenyon had regarded the criminality of libels on private persons as their tendency to disturb the public peace. Though the issue in that case was whether or not leave should be given to file criminal information (a remedy now abolished), Lord Coleridge's view was plainly that libel had to be so `cruel and outrageous' as to make it matter which called for the interference of the court in the defence of the public interest. While, therefore, it was almost invariably said that the criminality of libel arose from the tendency to disturb the public peace, evidence was not necessary to establish the existence of the tendency: the gravity of the libel was the best evidence. The logic of the law was finally exposed by du Parcq in Wicks. In giving the judgment of the court, he said that prosecution ought not to be instituted `when the libel complained of is of so trivial character as to be unlikely either to disturb the peace of the community or seriously to affect the reputation of the person defamed'. It is plain from the passage in the judgment where these words appear that the learned judge was emphasising that it is the gravity of the libel which matters. The libel must be more than of trivial character: it must be such as to provoke anger or cause resentment. The emphasis of the passage, as Wien recognised in Goldsmith Pressdram Ltd is on the character of the language used. In my judgment, the references in the case law to reputation, outrage, cruelty or tendency to disturb the peace are no more than illustrations of the various factors which either alone or in combination contribute to the gravity of the libel. The essential feature of criminal libel remains, as in the past, the publication of grave, not trivial, libel. The Attorney General for Saskatchewan concedes that the purpose and effect of ss. 300 and 301 of the Criminal Code (the defamatory libel provisions) are to criminalize "expression" because of its content. Placing such restrictions on the right of freedom of expression results in the infringement of s. 2(b) Charter rights. See: Irwin Toy Ltd. v. Quebec (Attorney General), 1989 CanLII 87 (SCC), [1989] S.C.R. 927. The Attorney General for Saskatchewan concedes that ss. 300 and 301 of the Criminal Code impose limits on expression and therefore infringe rights guaranteed by s. 2(b) of the Charter. However, the Attorney General for Saskatchewan submits that this infringement is justified under s. of the Charter. SECTION 300 OF THE CRIMINAL CODE The Court must determine whether s. 300 of the Criminal Code constitutes limit to freedom of expression which is demonstrably justified in free and democratic society. Section of the Charter reads: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in free and democratic society. Section 2(b) of the Charter reads: 2. Everyone has the following fundamental freedoms: ... (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; The onus of justifying the limitation of right or freedom is on the party seeking to uphold the limitation and the standard of proof is by preponderance of probability: R. v. Oakes, 1986 CanLII 46 (SCC), [1986] S.C.R. 103 at pp. 136‑138. In the Oakes decision Dickson C.J.C. stated that the limitation on right or freedom guaranteed by the Charter, must be shown to be reasonable and demonstrably justified in free and democratic society. The standards against which limit on right or freedom guaranteed by the Charter can be shown to be reasonable and demonstrably justified are those underlying values and principles essential to free and democratic society. In R. v. Keegstra (1990), 1990 CanLII 24 (SCC), 61 C.C.C. (3d) at p. 29, Dickson C.J.C. stated: As was stated by the majority in Slaight Communications Inc. v. Davidson (1989), 1989 CanLII 92 (SCC), 59 D.L.R. (4th) 416 at p. 427, [1989] S.C.R. 1038, 1989 CanLII 92 (SCC), 26 C.C.E.L. 85: "The underlying values of free and democratic society both guarantee the rights in the Charter and, in appropriate circumstances, justify limitations upon those rights." Obviously, practical application of s. requires more than an incantation of the words "free and democratic society". These words require some definition, an elucidation as to the values that they invoke. To large extent free and democratic society embraces the very values and principles which Canadians have sought to protect and further by entrenching specific rights and freedoms in the Constitution, although the balancing exercise in s. is not restricted to values expressly set out in the Charter Slaight, supra, at p. 427). With this guideline in mind, in Oakes commented upon some of the ideals that inform our understanding of free and democratic society, saying (at p. 346): The court must be guided by the values and principles essential to free and democratic society which believe embody, to name but few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which limit on right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified. Undoubtedly these values and principles are numerous, covering the guarantees enumerated in the Charter and more. Equally, they may well deserve different emphasis, and certainly will assume varying degrees of importance depending upon the circumstances of particular case. It is important not to lose sight of factual circumstances in undertaking s. analysis for these shape court's view of both the right or freedom at stake and the limit proposed by the state; neither can be surveyed in the abstract. As Wilson J. said in Edmonton Journal, supra, referring to what she termed the "contextual approach" to Charter interpretation at. p. 584): particular right or freedom may have different value depending on the context. It may be, for example, that freedom of expression has greater value in political context than it does in the context of disclosure of the details of matrimonial dispute. The contextual approach attempts to bring into sharp relief the aspect of the right or freedom which is truly at stake in the case as well as the relevant aspects of any values in competition with it. It seems to be more sensitive to the reality of the dilemma posed by the particular facts and therefore more conducive to finding fair and just compromise between the two competing values under s. 1). Freedom of expression is extremely important in free and democratic society. However, freedom of expression cannot be absolute. Unrestricted freedom of expression may interfere with legitimate interests in privacy and reputation. These are the competing interests which must be balanced. In R. v. Zundel, 1992 CanLII 75 (SCC), [1992] S.C.R. 731 at p. 775 McLachlin J. stated: add that what is at issue is the value of all speech potentially limited by the provision at issue. In assessing this, the Court must not be diverted by the offensive content of the particular speech giving rise to the Charter challenge of the legislative provision. From the foregoing conclude that in determining whether s. 300 of the Criminal Code can be upheld as reasonable limit prescribed by law as can be demonstrably justified in free and democratic society under s. of the Charter, the Court must consider all expression that is potentially restricted by s. 300 of the Criminal Code, not only the expressions involved in this particular case. THRESHOLD TEST The threshold test under s. of the Charter is whether s. 300 of the Criminal Code, the impugned section, represents "limit prescribed by law". See: R. v. Oakes, supra. The applicants submit that the definition of defamatory libel in s. 298 of the Criminal Code is vague and uncertain. In Canada v. Pharmaceutical Society (Nova Scotia), 1992 CanLII 72 (SCC), [1992] S.C.R. 606 at p. 626 Gonthier J. stated: 1.Vagueness can be raised under s. of the Charter, since it is principle of fundamental justice that laws may not be too vague. It can also be raised under s. of the Charter in limine, on the basis that an enactment is so vague as not to satisfy the requirement that limitation on Charter rights be "prescribed by law". Furthermore, vagueness is also relevant to the "minimal impairment" stage of the Oakes test ... Section of the Charter reads: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. If law which imposes criminal sanction is vague and uncertain, an accused person may be deprived of his liberty because that person may find it difficult, if not impossible, to defend the charge against him or her in accordance with the principles of fundamental justice by reason of the vagueness and uncertainty of the offence. That is not the situation before me. find that the definition of defamatory libel in s. 298 of the Criminal Code is constructed in words of common usage capable of interpretation. It provides sensible construction and "an intelligible standard according to which the judiciary must do its work". See: Irwin Toy Ltd., supra. find that s. 298 of the Criminal Code defines defamatory libel in manner which provides an intelligible standard of conduct. Sections 298, 299 and 300 constitute "limit prescribed by law" within s. of the Charter. The threshold test for the application of s. has been met. SECTION ANALYSIS In order to justify an infringement of s. 2(b) of the Charter, it must be shown that: (1)The impugned legislative provision has an objective of pressing and substantial concern. (2)There is proportionality to the legislation in that: (a)the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to the objective; (b)the means should impair freedom of expression as little as possible; (c)there must be proportionality between the effects of the limiting legislation and the objective. See: R. v. Oakes, supra. Section 298 of the Criminal Code defines defamatory libel as matter published without lawful justification or excuse that is likely to injure the reputation of any person by exposing him to hatred, contempt or ridicule, or that is designed to insult person. OBJECTIVE The objective of s. 300 of the Criminal Code is the protection of individuals from false defamatory attacks on their privacy and reputations. The objective of s. 300 of the Criminal Code must be of sufficient importance to justify violation of s. 2(b) of the Charter. That is, the objective must relate to concerns which are pressing and substantial in free and democratic society. In R. v. Stevens, 1993 CanLII 14706 (MB PC), [1993] W.W.R. 38, Giesbrecht, Prov. J. stated at p. 63: The Supreme Court has on number of occasions acknowledged that one of the underlying principles essential to free and democratic society is respect for the intrinsic value of all individuals: in Oakes, supra, at p. 136 Dickson C.J.C. spoke of the "respect for the inherent dignity of the human person"; In Reference re s. 94(2) of Motor Vehicle Act (British Columbia) (1985), 1985 CanLII 81 (SCC), 48 C.R. (3d) 289 at 309 [[1986] W.W.R. 481] Lamer J. (as he then was) referred to "`the dignity and worth of the human person'" (from the preamble of the Canadian Bill of Rights) as being one of the beliefs on which the administration of justice is founded; in R. v. Morgentaler (1988), 1988 CanLII 90 (SCC), 37 C.C.C. (3d) 449 at 554, Wilson J. stated that "beliefs about human worth and dignity `are the sine quo non of the political tradition underlying the Charter'". It cannot be disputed that reputation is significant facet of the inherent dignity and worth of the human person. The question must answer is whether protection of reputation is pressing and substantial concern in free and democratic society. The value of good reputation has roots deep in history; all societies have sought in one manner or another to protect personal reputation. Brown in The Law of Defamation in Canada, at p. states: it is universally recognized that the reputation of person is, and always has been, an important value which the law must protect. Some form of legal or social constraints on defamatory publications "are to be found in all stages of civilization, however imperfect, remote and proximate to barbarism". The extent to which community protects the reputation of its citizens may partially measure its "cultural level and democratic quality." (Emphasis added.) omitted]. Carter‑Ruck at p. 17 expresses similar view: There is little doubt that defamation has always been regarded as serious subject and its transgression as serious offence. Defamation, in Roman times described as calumniation, has been so treated in the law of all civilized communities. Veeder commenting on the value of reputation in [1904] Colum. L. Rev., at p. 33 said: One's good name is therefore as truly the product of one's efforts as any physical possession; indeed it alone gives to material possessions their value as sources of happiness. Reputation has long been recognized as being fundamental value in free and democratic society. Courts have held that emotional damage can be caused by defamatory remarks and psychological harm can be the result of violations of person's integrity. See: R. v. Keegstra, supra and R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] S.C.R. 30. One of the underlying principles essential to free and democratic society is respect for the inherent dignity and worth of the human person which includes respect for the reputation of all persons. The applicants' submission that by reason of the fact that prosecutions of criminal defamatory libel are rare, the objectives of ss. 300 and 301 of the Criminal Code are not of pressing and substantial concern in free and democratic society is untenable. It may be that these sections, by their existence, create deterrent to those who would criminally defame individuals. find that s. 300 of the Criminal Code has an objective of pressing and substantial concern in free and democratic society. now turn to the next stage of the analysis of s. of the Charter which is the proportionality test. This involves balancing number of factors to determine whether the means chosen to achieve an objective are proportional and rationally connected to the objective. In this case the Court must balance the value of freedom of expression against the value of reputation. That is, the court must balance the limitation of the impugned s. 300 of the Criminal code in the context of the value of the limitation placed on s. 2(b) of the Charter in free and democratic society which s. 300 is designed to protect. find that there is rational connection between the objectives of protecting the privacy and reputations of persons in the defamatory libel provisions of the Criminal Code and the limitation on freedom of expression as guaranteed under s. 2(b) of the Charter. The prohibition of publication of false defamatory libel is rationally connected to the protection of privacy and reputation. It is not arbitrary, unfair or based on irrational considerations. Thus the first component of the proportionality test is met. Sections 298, 299 and 300 of the Criminal Code minimally impair the Charter right to freedom of expression as guaranteed by s. 2(b). The actus reus elements of the s. 300 offence are publication of false statement that is defamatory. The mens rea elements of the s. 300 offence are the intention to publish, knowledge of falsity and the intention to defame. The fact that the Crown must prove the mens rea elements of the offence, including knowledge of falsity, reaffirms my conclusion that the objective of s. 300 of the Criminal Code impairs freedom of expression as little as possible. The final component of the proportionality test involves weighing the effects of the limitation under s. 300 of the Criminal Code on the right to freedom of expression guaranteed by s. 2(b) of the Charter against the objective of s. 300 of the Criminal Code. The limitation on the right to freedom of expression imposed by s. 300 is narrow. It is confined to the intentional publishing of defamatory matter, known to be false, with the intention of defaming person. Such expression is far removed from the core principles underlying the guaranteed right to freedom of expression under s. 2(b) of the Charter. The limitation imposed on freedom of expression by s. 300 is negligible. The objective of the limitation is to protect persons from the harm caused by false and defamatory attacks or the reputations of members of society. The limitation imposed on freedom of expression does not outweigh the importance of its objective. The last component of the proportionality test is met. find that s. 300 of the Criminal Code constitutes reasonable limit in free and democratic society on the freedom of expression guaranteed by s. (b) of the Charter and is therefore upheld under s. of the Charter. ONUS The applicants submit that an accused charged under s. 300 of the Criminal Code is faced with reverse onus under ss. 309 and 311 of the Criminal Code since they are relying on the truth of the alleged defamatory material. This, they submit, is in violation of ss. 11(c) and (d) of the Charter which read: 11. Any person charged with an offence has the right ... (c) not to be compelled to be witness in proceedings against that person in respect of the offence; (d) to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal. Sections 309 and 311 of the Criminal Code read: 309. No person shall be deemed to publish defamatory libel by reason only that he publishes defamatory matter that, on reasonable grounds, he believes is true, and that is relevant to any subject of public interest, the public discussion of which is for the public benefit. 311. No person shall be deemed to publish defamatory libel where he proves that the publication of the defamatory matter in the manner in which it was published was for the public benefit at the time when it was published and that the matter itself was true. Under s. 300 of the Criminal Code one of the elements which the Crown must prove is that the defamatory libel was false. If the Crown fails to prove that the matter was false, the accused need not prove that it was true nor that it was for the pubic benefit. Accordingly, ss. 309 and 311 are not relevant to this charge. An accused need only raise reasonable doubt for an acquittal under s. 300 of the Criminal Code. Thus the accused are not faced with reverse onus. There is no violation of s. 11(c) or (d) of the Charter. The applicants also submit that ss. 611 and 612 of the Criminal Code create reverse onus. Sections 611 and 612 of the Criminal Code read: 611. (1) An accused who is charged with publishing defamatory libel may plead that the defamatory matter published by him was true, and that it was for the public benefit that the matter should have been published in the manner in which and at the time when it was published. (2) plea that is made under subsection (1) may justify the defamatory matter in any sense in which it is specified in the count, or in the sense that the defamatory matter bears without being specified, or separate pleas justifying the defamatory matter in each sense may be pleaded separately to each count as if two libels had been charged in separate counts. (3) plea that is made under subsection (1) shall be in writing and shall set out the particular facts by reason of which it is alleged to have been for the public good that the matter should have been published. (4) The prosecutor may in his reply deny generally the truth of plea that is made under this section. (1) The truth of the matters charged in an alleged libel shall not be inquired into in the absence of plea of justification under section 611 unless the accused is charged with publishing the libel knowing it to be false, in which case evidence of the truth may be given to negative the allegation that the accused knew that the libel was false. (2) The accused may, in addition to plea that is made under section 611, plead not guilty and the pleas shall be inquired into together. (3) Where plea of justification is pleaded and the accused is convicted, the court may, in pronouncing sentence, consider whether the guilt of the accused is aggravated or mitigated by the plea. Sections 611 and 612 of the Criminal Code permit an accused charged with defamatory libel to enter plea of justification in addition to plea of not guilty. The substance of the Libel Act, 1843 (6 and Vict., c. 96) was adopted in Saskatchewan in The Libel and Slander Act, R.S.S. 1909, c. 71 (see now R.S.S. 1978, c. L‑14). The only substantive provisions in the English Libel Act which are omitted in the Saskatchewan Act dealt with criminal libel which is not within the jurisdiction of the Province. Sections 611 and 612 of the Criminal Code are very similar to s. of the Libel Act 1843 (6 and Vict., c. 96) which reads: 6. On the trial of any indictment or information for defamatory libel, the defendant having pleaded such plea as hereinafter mentioned the truth of the matters charged may be inquired into, but shall not amount to defence unless it was for the public benefit that the said matters charged should be published; and to entitle the defendant to give evidence of the truth of such matters charged as defence to such indictment or information, it shall be necessary for the defendant, in pleading to the said indictment or information, to allege the truth of the said matters charged in the manner now required in pleading justification to an action for defamation, and further to allege that it was for the public benefit that the said matters charged should be published, and the particular fact or facts by reason whereof it was for the public benefit that the said matters charged should be published, to which plea the prosecutor should be at liberty to reply generally, denying the whole thereof; and if after such plea the defendant shall be convicted on such indictment or information, it shall be competent to the court, in pronouncing sentence, to consider whether the guilt of the defendant is aggravated or mitigated by the said plea, and by the evidence given to prove or to disprove the same: provided always, that the truth of the matters charged in the alleged libel complained of by such indictment or information shall in no case be inquired into without such plea or justification: provided also, that in addition to such plea it shall be competent to the defendant to plead plea of not guilty: provided also, that nothing in this act contained shall take away or prejudice any defence under the plea of not guilty, which it is now competent to the defendant to make under such plea, to any action or indictment or information for defamatory words or libel. In Archbold Pleading, Evidence Practice In Criminal Cases, 40th ed. (London: Sweet Maxwell, 1979), c. 25 at p. 1732, para. 3638, there is the following in reference to the Libel Act 1843: The falsity of the libel is immaterial unless justification is pleaded. Where justification is pleaded the defendant has to prove the truth of the alleged libel and that the publication thereof is for the public benefit and the prosecutor has to deal with the matter only after prima facie case of justification is made out. The foregoing establishes, under the English Libel Act, reverse onus in relation to s. of the Libel Act 1843. However, have been unable to find any authorities specifically interpreting ss. 611 or 612 of the Criminal Code whether they be substantive or procedural. am of the view that where statutory provision can reasonably be interpreted in more than one way it should be interpreted with the Charter in mind. Lamer J., in his dissenting judgment in Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] S.C.R. 1038 at p. 1078, stated the principle in this manner: Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. In Hills v. Canada, 1988 CanLII 67 (SCC), [1988] S.C.R. 513, at p. 558, Madam Justice L'Heureux‑Dube stated: agree that the values embodied in the Charter must be given preference over an interpretation which would run contrary to them (RWDSU v. Dolphin Delivery Ltd., [1986] S.C.R. 573; Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] S.C.R. 110). Mr. Justice Beetz referred to Charter‑based interpretation as another meaning of "the presumption of constitutionality" in Manitoba v. Metropolitan Stores (MTS) Ltd., 1987 CanLII 79 (SCC), [1987] S.C.R. 110, at p. 125: Still another meaning of the "presumption of constitutionality" is the rule of construction under which an impugned statute ought to be construed, whenever possible, in such way as to make it conform to the Constitution. This rule of construction is well known and generally accepted and applied under the provisions of the Constitution relating to the distribution of powers between Parliament and the provincial legislatures. It is this rule which has led to the "reading down" of certain statutes drafted in terms sufficiently broad to reach objects not within the competence of the enacting legislature: McKay v. The Queen, [1965] 798. find that ss. 611 and 612 of the Criminal Code are reasonably open to more than one interpretation. These sections ought to be construed in such way so as to make them consistent with Charter values. conclude, therefore, that ss. 611 and 612 set out the procedures to be followed but do not create reverse onus on the accused. They are procedural. The effect of these provisions is that the accused is permitted to put the Crown on notice of his or her defence. This interpretation is in accord with Charter values. When an accused pleads, pursuant to ss. 611, that the alleged defamatory matter published by him was true and that it was for the public benefit, the onus remains upon the Crown to prove beyond reasonable doubt that the matter was not true and that it was not for the public benefit. The onus does not shift to the accused. However, as in all criminal cases, the accused has the right to testify or to call evidence of the truth of the matter to negative the allegation that the accused knew that the libel was false but there is no onus upon him or her to do so. Accordingly, s. 300 of the Criminal Code does not violate subsections (c) and (d) of s. 11 of the Charter. SECTION 301 OF THE CRIMINAL CODE Section 301 of the Criminal Code provides that every one who publishes defamatory libel is guilty of an offence. Unlike under s. 300 of the Criminal Code, the Crown need not prove the mens rea element of knowledge of falsity under s. 301. Thus under s. 301 an accused is open to criminal sanction if he or she expresses an opinion or belief which he or she reasonably and honestly believes to be true and even if the defamatory matter is true. If the defamatory matter is in fact true, the mens rea element of intention to defame may not be present. The limitation imposed on s. 2(b) of the Charter by s. 301 of the Criminal Code does not meet the minimal impairment stage of the Oakes test, nor is there proportionality between the effects of the limiting legislation and the objective. Therefore, s. 301 of the Criminal Code cannot be justified in free and democratic society under s. of the Charter. CONCLUSIONS Section 300 of the Criminal Code is an infringement on freedom of expression guaranteed by s. 2(b) of the Charter. Such infringement is reasonable limit prescribed by law and demonstrably justified in free and democratic society. Section 300 of the Criminal Code does not constitute threat to the right to liberty and the right not to be deprived thereof. Section 300 does not violate ss. 7, 11(c) nor 11(d) of the Charter. Section 301 of the Criminal Code is an infringement on freedom of expression guaranteed by s. 2(b) of the Charter. It does not meet the threshold test under s. of the Charter and therefore cannot be upheld under that section. In summary find s. 300 of the Criminal Code to be constitutional and valid. find s. 301 to be unconstitutional and of no force or effect. J. Q.B. A.D. 1994 No. J.C.S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: JOHN DAVID LUCAS and JOHANNA ERNA LUCAS and THE MINISTER OF JUSTICE FOR THE PROVINCE OF SASKATCHEWAN for HER MAJESTY THE QUEEN and THE MINISTER OF JUSTICE FOR THE DOMINION OF CANADA for HER MAJESTY THE QUEEN RESPONDENTS R. Donlevy for the Crown R. Parker for the Johanna Erna Lucas John David Lucas on his own behalf ADDENDUM HRABINSKY J. March 9, 1995 Order that the agreed statement of facts on pp.2 and of the judgment dated February 6, 1995, not be published nor broadcast in any manner.

The accuseds were charged under ss.300 and 301 of the Code with (i)committing and (ii)publishing a defamatory libel against a police officer. They filed a plea of justification as permitted under s.611(1) of the Code. The Crown denied the truth of the plea pursuant to s.611(4) and the matter proceeded to trial. At the opening of their trial the accuseds applied for an order declaring ss.300 and 301 of the Criminal Code to be of no force and effect on the basis that they constituted an unreasonable limitation on their rights and freedoms guaranteed under ss.2, 7 and 11 of the Charter. The Crown admitted that ss.300 and 301 limited an individual's right to freedom of expression as provided by s.2 of the Charter but argued that this infringement was justified under s.1 of the Charter. HELD: Application allowed in part. 1)The onus of justifying the limitation of a right or freedom is on the party seeking to uphold the limitation and the standard of proof is by a preponderance of probability. 2)The standards against which a limit on a right or freedom guaranteed by the Charter can be shown to be reasonable and demonstrably justified are those underlying values and principles essential to a free and democratic society. While the right of free speech is important in our society, it is not unrestricted. 3)In order to justify an infringement of this right, it must be shown that: (i)the impugned legislative provision has an objective of pressing and substantial concern and (ii)there is a proportionality to the legislation in that: (a)the measures must be fair and not arbitrary, carefully designed to achieve the objective in question and rationally connected to the objective; (b)the means should impair freedom of expression as little as possible; (c)there must be a proportionality between the effects of the limiting legislation and the objective. S.300 of the Code meets these tests, and is therefore a reasonable limit on free speech and is valid. 4)Ss.611 and 612 of the Code, which permit a plea of justification do not create a reverse onus on the accused. They are procedural and merely serve to put the Crown on notice as to the accused's defence. The Crown must still prove that the alleged defamatory libel is knowingly false beyond a reasonable doubt. 5)S.301 of the Code makes it an offence to publish a defamatory libel whether or not the accused believes it to be true. S.301 is therefore not a reasonable limit and is invalid. ADDENDUM: The Court ordered that the agreed statement of facts set out at pp. 2 and 3 of the judgment not be published nor broadcast in any manner.

b_1995canlii6024.txt

S.C.R 122. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 151 Date: 2013 04 19 Docket: J. No. of 2011 Judicial Centre: Saskatoon BETWEEN: GOVERNMENT OF SASKATCHEWAN (VICTIM SERVICES BRANCH) and HER MAJESTY THE QUEEN and JAKE OTTERTAIL Counsel: Michael J. Morris for the applicant, Government of Saskatchewan (Victim Services Branch) Valerie A. Adamko and Jaimie L. MacLean for the respondent, Her Majesty the Queen Morris P. Bodnar, Q.C. for the respondent, Jake Ottertail DECISION DOVELL J. April 19, 2013 [1] Jake Austin Lee Ottertail is charged that he did: ... between the 6th day of August, A.D. 2010, and the 7th day of August, A.D. 2010, at or near Saskatoon, Saskatchewan, did: unlawfully cause the death of Bert Haverkort, and did thereby commit second degree murder, contrary to Section 235 of the Criminal Code. [2] The applicant, Government of Saskatchewan, Victim Services Branch, has brought a motion before myself as the trial judge for an order permitting a live audio/video broadcast of the trial of this matter set to proceed on April 29, 2013, from a Court of Queen’s Bench courtroom in Saskatoon, Saskatchewan, to a courtroom in a court house in the Greater Toronto area, Ontario, for the exclusive benefit of the family of Bert Haverkort, deceased. Although that trial originally was set for three week jury trial, in all likelihood the trial will not take that long as Mr. Ottertail re-elected to be tried by Queen’s Bench judge alone on April 18, 2013. [3] The respondent, Her Majesty the Queen, has consented to the draft order filed by the applicant and the respondent, Jake Austin Lee Ottertail, has taken no position regarding the application presently before the Court. [4] While the Court has great sympathy for the family of Bert Haverkort and understanding of their plight in not being able to attend all or none of the trial for personal reasons including financial, the Court has concluded that it must dismiss this application due to the serious concerns it has in granting the order being requested. [5] This application is both novel and unprecedented. Saskatchewan has developed protocol for accommodating the participants of the trial process including witnesses, lawyers and the judges within the trial process by way of video conferencing. The Court was presented with no case authority in which court has ever made an order allowing video conferencing for the benefit of specific non-participating persons within Saskatchewan let alone another province. This believe is for several very good reasons. [6] First, although this Court certainly has inherent jurisdiction to govern its own process within its own court within the Province of Saskatchewan, this Court has no jurisdiction to make any orders involving facilities and personnel in the Province of Ontario. It is being suggested that the Victim Services Branch in Ontario would be responsible for ensuring that whatever order the Court may make is complied with including the exclusion of cameras and recording devices. It is being suggested that only approximately 12 family members would be allowed in the courtroom in Ontario and that the Ontario Victim Services personnel would be policing those requirements. What would they do if member of the public wanted to observe the trial? What would happen if family member did not comply with any order made by this Court? The questions go on and on. As well, technical personnel would be required in Toronto to ensure the audio/video feed is connected properly on daily basis. The Court is not prepared to accept the argument of the applicant that courtroom in Toronto where only Bert Haverkort’s family would be in attendance is just an extension of the courtroom in Saskatoon. It is distinct courtroom in another province over which this Court has no jurisdiction or control. [7] Second, the Court is very concerned about the possible ramifications of granting such an order as being requested in this matter. If the Court was to allow this application a dangerous precedent would be set that could potentially result in multiple applications being made in future trials by numerous interested parties throughout the country or indeed the world claiming an inability to attend a court proceeding and asking that they be linked by a live audio/video feed. The Court has concluded that to grant this application would certainly open pandora’s box to which there would be no control and would not be in the interests of the administration of justice. [8] The Court realizes that the family of Bert Haverkort will be very disappointed with this decision and that indeed is regrettable, however, the Court has the responsibility of ensuring that administration of the trial process is fair and within the rule of law. The application is thus dismissed. J. M.L. DOVELL

The applicant, the Government of Saskatchewan Victim Services Branch requested an order permitting a live audio broadcast of the trial of the accused from a courtroom in Saskatoon to a courtroom in Toronto for the exclusive benefit of the family of the deceased victim. The accused took no position. HELD: The Court dismissed the application. Making an order for video-conferencing for non- participating persons was not permitted because the Court had no control over the policing of the courtroom in Ontario. It would set a dangerous precedent that could result in multiple applications being made in future trials by numerous interested parties in different jurisdictions over which the Court had no control.

b_2013skqb151.txt

SCHERMAN IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: November 30, 2015 2015 SKPC 171 File: SC#425 of 2014 Location: Saskatoon Between: Discovery Ford Ltd. and Mario Di Battista and R-Rock Concrete (2013) Ltd. FIAT R.D. JACKSON, [1] Default judgment at case management was granted in the within matter December 1, 2014 against the defendants, Mario Di Battista and R-Rock Concrete (2013) Ltd. (R-Rock) in the amount of $19,393.00, jointly and severally. [2] R-Rock now seeks to have the default judgment set aside pursuant to s. 37(1) of the Small Claims Act, now in excess of one year from the granting of the judgment. [3] Sections 37(2) of the Act: (2) The court may, in exceptional circumstances, allow an application to be made pursuant to subsection (1) after the expiry of 90 days from the date of judgment [4] The applicant has filed an affidavit in support of having the summons issue from Scott Lachappelle, director of R-Rock. [5] Given the inordinate amount of time that has elapsed from the granting of the default judgment, the Court directs that upon the return date argument is to be presented first as to whether the circumstances warrant consideration as an “exceptional circumstance” permitting the application to proceed. Second, whether on the merits, the judgment ought to be set aside. [6] The Court further directs that copy of this fiat accompany the s. 37 summons to be served upon the respondent, Discovery Ford Sales Ltd. R.D. Jackson,

HELD: The defendant was ordered to present argument on the return date on whether the circumstances warranted consideration as an “exceptional circumstance” pursuant to s. 37(2) of the Act, to determine whether the application should proceed.

b_2015skpc171.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2006 SKCA 114 Date: 20061012 Between: Docket: 1242 Her Majesty the Queen Respondent An order has been made in this case prohibiting publication of any information that could disclose the identity of the young person pursuant to s. 75(3) of the Youth Criminal Justice Act Coram: Cameron, Gerwing and Smith JJ.A. Counsel: Lane W. Wiegers for the Crown [M.A.H.] in person Appeal: From: Provincial Court Heard: October 12, 2006 Disposition: Appeal allowed (orally) Written Reasons: October 17, 2006 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Gerwing Smith J.A. 1] This is an application for leave to appeal and, leave being granted, an appeal by the Crown from a sentence imposed against a young offender pursuant to the Youth Criminal Justice Act, S.C. 2002, c. 1. The respondent M.A.H. had pled guilty to a charge of robbery, an offence contrary to s. 344(b) of the Criminal Code. The respondent was sentenced to 90 days secure custody, 45 days community supervision, one year probation and a 10 year firearms prohibition. M.A.H. had already served 45 days in custody on remand. The Court dealt with the matter orally, after hearing argument, granting the Crown’s application for leave to appeal, and allowing the appeal. The sentence was set aside and a sentence of 12 months closed custody, six months community supervision, one year probation and a 10 year firearms prohibition was imposed in addition to the 90 days closed custody already served at the time of the appeal. [2] It is the view of this Court that the sentence imposed by the sentencing judge was demonstrably unfit, failing to taking into account the seriousness of the offence, the culpability of the respondent, the criminal history and other circumstances of the respondent, and the principles of sentencing set out in the Youth Criminal Justice Act. It appears from the transcript of the sentencing hearing that the learned trial judge was of the view that the recent decision of the Supreme Court of Canada in R. v. B.W.P; R. v. B.V.N., 2006 SCC 27 (CanLII); (2006), 267 D.L.R. (4th) 385, had “fundamentally changed the sentencing rules” (sentencing transcript, at p. 30) in cases governed by the Youth Criminal Justice Act. [3] The circumstances of the offence are set out in the sentencing judgment as follows: [3] The circumstances of the offence are as follows: H., whose date of birth is November 21, 1988, along with two adults, agreed to commit robbery. H. then called Pizza Hut and requested that pizza and Coke be delivered to false address. H. requested that the delivery person bring change for $100.00 bill. The three individuals then hid in an alley adjacent to the false address. H. was the only one of the three not to have his face masked. When the deliveryman, Peers, arrived, H. called out to him. H. and one of the adults approached Peers, and the adult pointed .45 calibre semi-automatic handgun at Peers' chest, while the other adult stood watch some feet away. The gun had been stolen in an earlier breaking and entering committed by one of the adults, and could not be fired. The deliveryman was not very intimidated by the gun, thinking that it was pellet gun. He gave the pizza and Coke to the two accuseds, but refused to give them the money. All three of the accuseds fled. [2006 SKPC 78] [4] Although he did not actually hold the gun, the respondent was clearly principal player in this offence. Although the co-offenders were adults, they were not significantly older than the respondent, who was almost 18. The respondent has an extensive young offender record of over 44 offences in approximately 46 months, including three break and enters, 10 other property related offences, one escape from lawful custody and one assault on police officer. He has also been convicted of 26 breaches of condition of sentence or probation. The pre-sentence report which was ordered also mentions large number of custodial incident reports during periods when the respondent has been in custody. The offence in question occurred only 10 days after the conclusion of the open custody portion of previous sentence, while the respondent was still subject to community supervision. [5] The pre-sentence report is very negative, evaluating the respondent as high risk to re-offend, noting that he has been consistently non-compliant with court orders or authorities in every setting he encounters. He has rarely attended school since 2003, and associates only with persons involved in criminal activity. He has severe alcohol problem, and in January 2004 was hospitalized with blood alcohol reading of .52. He has referred himself three times to detoxification centre, but has been unable to follow through. He is also high consumer of marihuana. The pre-sentence report flatly remarks that the risk assessment test failed to identify any strength areas. The writer recommended psychological or psychiatric testing for the respondent and concluded by recommending custody and supervision order with secure custody. [6] This young person had previously been sentenced seven times to the following sentences: community work service; probation; deferred custody; probation; open custody and supervision; open custody and supervision; open custody and supervision. During this time he had repeatedly violated conditions of his sentences and continued to offend. The offence in this case is the second violent offence of this accused. The inescapable conclusion is that at present this young person cannot be controlled and cannot receive the treatment programs he clearly needs in non-custodial setting. While in custody, although his conduct has resulted in numerous incident reports reflecting constantly disruptive pattern of behaviour, he has been able to complete number of academic credits. [7] As have indicated, the learned sentencing judge in his judgment focused considerable attention on the decision of the Supreme Court of Canada in B.W.P., which he took to indicate that sentence of closed custody must be employed only rarely and in unusual circumstances. substantial portion of the judgment was then addressed to the reasons why, even so, custodial sentence was warranted in this case. He commented on the seriousness of the offence in question and the necessity to bring home to the respondent the enormity of his misconduct. He noted the escalating pattern of criminal behaviour, and the evidence that previous sentences had apparently had little effect, failing to reinforce respect for societal values in the respondent's mind. He was mindful of the extremely negative pre-sentence report and the identified needs for programming and education. All these factors led him to conclude that custodial sentence was in this case justified. [8] However, no reasons at all were offered for the short length of the sentence imposed, or how this related to the principles of sentencing set out in the Act. It was clear that the primary concern of the sentencing judge was that, in the wake of the Supreme Court decision in B.W.P., custodial sentence might not, in these circumstances, be open to him at all. He concluded his judgment with this comment: [23] It may be of note that, given the fact that H. was not represented, and given the uncertainty of the law just now in the wake of these Supreme Court decisions, not only inform him of his right to appeal this sentence; encourage him to do so, to ensure that he has been given just treatment. [9] It is our respectful view that the learned sentencing judge’s conclusion that the decision in B.W.P. virtually ruled out custodial sentences for young persons under the Youth Criminal Justice Act was unwarranted. The gist of that decision is that under the Act, the principle of general deterrence is not a factor to be taken into account and cannot be used to justify a sentence harsher than the circumstances of the offender and the offence would warrant. Nor is specific deterrence to be considered as a separate factor. B.W.P., for example, involved young person who killed man during fight and pled guilty to manslaughter. He was sentenced to 15-month custody and supervision order, one day to be served in open custody and the balance under community supervision. [10] In upholding the propriety of that sentence, the Court noted that the primary sentencing objectives under the Act were to promote the protection of the public by addressing the circumstances underlying the offending behaviour, by rehabilitating and reintegrating young persons into society and by holding young persons accountable through the imposition of meaningful sanctions related to the harm done. In the case of B.W.P., the Court noted the offender’s supportive and stable family, aboriginal identity, minimal legal record, positive school attendance and performance, pro-social extra- curricular activities and positive comments from family members, school officials and hockey coaches. He had been assessed as low risk to re-offend. The sentencing judge had been of the view that since the offence the young person had made positive progress in his rehabilitation and reintegration into society, concluding: [23] Separating BWP from society as urged by the Crown will in my opinion not address the long-term protection of the public as envisioned by the Youth Criminal Justice Act. However, allowing him to build on the progress he has made since his release from custody would meet that goal. [11] While the learned trial judge in the instant case was correct in concluding that the focus of sentencing under the Act is on the reinforcement of societal values by imposing meaningful consequences, with view to rehabilitation and reintegration, it is our respectful view that in attempting to apply these principles he was distracted by the perceived limitations arising from the decision in B.W.P., and failed to consider what length of sentence would in this case respect those principles and accomplish the goals in question. It is our view that these principles dictated a long term custodial sentence in this case, to accomplish the task of bringing the seriousness of the offence to the respondent’s attention, and provide meaningful consequences to reinforce societal values without negatively affecting the respondent’s likelihood of rehabilitation. In the last regard, it is apparent that meaningful progress in counseling and education can only be achieved for this young person in custodial setting. [12] There can be no doubt of the seriousness of the offence in the instant case, particularly in the context of the on-going conduct of the respondent. This was case of armed robbery, with the use of gun, committed against vulnerable member of society. The respondent was principal offender. It represents an alarming escalation in the unlawful conduct of the respondent despite repeated attempts to achieve his rehabilitation and reintegration in the community. It occurred only 10 days after the conclusion of his last imposed period of open custody and while he was still subject to the community supervision portion of his previous sentence. [13] In addition, the contrast of the personal circumstances of this offender and those of B.W.P. could not be sharper. [14] It is evident from the sentencing transcript that the sentencing judge concluded that, following the decision in B.W.P., it was not possible to apply the principle of parity of sentencing mandated by s. 38(2)(b) of the Act, for, in his view, previous sentences imposed in the region would have reflected an impermissible application of the principle of deterrence. This conclusion, in our view, does not follow. While some precedents might well have to be discarded on that basis, it is necessary to examine previous decisions of the courts to determine the degree to which, if any, deterrence was factor taken into account to increase sentence. [15] recent decision of this Court that must be taken into account is R. v. R.J.E. (2004), 2004 SKCA 111 (CanLII), 254 Sask. R. 218, where the Court considered the fitness of six month deferred custody sentence with nine months probation to follow for an offender who committed nine offences over period of about 12 months, including an armed robbery in which he held knife to the throat of gas station attendant and mischief in which he caused about $20,000 damage to his mother’s home. He was 16 years old and had no prior criminal record. The evidence supported the view that he could not be controlled in non-custodial setting. The Crown’s sentence appeal was allowed and, after granting four months credit for his time in pre-sentence custody, this Court imposed sentence of 14 months closed custody to be followed by seven months community supervision. There is no suggestion in the decision that deterrence was factor taken into account. [16] It is our conclusion that the sentence imposed in this case was demonstrably unfit, taking into account the seriousness of the offence and the need to bring this home to the respondent, his lengthy record of previous offences and his assessment as high risk to re-offend, his inability to be controlled in non-custodial setting, and his need for psychological and substance abuse counseling and further education. [17] The Crown’s application for leave to appeal the sentence imposed on the respondent is granted and the appeal is allowed. [18] The respondent has already served the 90 day closed custody portion of the sentence originally imposed. That sentence is to be set aside. In addition to the time already served, the respondent is to serve 12 months in closed custody to be followed by a period of community supervision of six months and a period of probation of one year. He will also be subject to a 10 year firearms prohibition as in the original sentence.

This is an application for leave to appeal, and leave being granted, an appeal by the Crown from a sentence imposed against a young offender pursuant to the Youth Criminal Justice Act. The respondent pled guilty to a charge of robbery, an offence contrary to s. 344(b) of the Criminal Code. The respondent was sentenced to 90 days secure custody, 45 days community supervision, 1 year probation and a 10 year firearms prohibition. HELD: Appeal allowed orally. The sentence is set aside and a sentence of 12 months closed custody, 6 months community supervision, 1 year probation and a 10 year firearms prohibition was imposed in addition to the 90 days closed custody already served at the time of the appeal. 1) It was clear that the primary concern of the sentencing judge was that, in the wake of the Supreme Court of Canada decision in R. v. B.W.P.; R. v. B.V.N. 2006 SCC 27, a custodial sentence might not be open to him at all. It is the Court's view that the sentencing judge's conclusion that the decision in B.W.P. virtually ruled out custodial sentences for young persons under the Youth Criminal Justice Act was unwarranted. The gist of that decision is that under the Act the principle of general deterrence is not a factor to be taken into account and cannot be used to justify a sentence harsher than the circumstances of the offender and the offence would warrant. Nor is specific deterrence to be considered as a separate factor. 2) It is the Court's view that a long custodial sentence is necessary to accomplish the task of bringing the seriousness of the offence to the respondent's attention, and provide meaningful consequences to reinforce societal values without negatively affecting the respondent's likelihood of rehabilitation.

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SUPREME COURT OF NOVA SCOTIA Citation: R. v. Calder, 2010 NSSC 146 Date: 20100414 Docket: CRH 316393 Registry: Halifax Between: Her Majesty the Queen v. Anne Calder LIBRARY HEADING Judge: The Honourable Justice Peter Bryson Heard: April 13, 2010, in Halifax, Nova Scotia (Charter Application) Subject: Civil Rights. Canadian Charter of Rights and Freedoms, s. and 24(1). Right to make full answer and defence. Exclusion of evidence. Mistrial. Summary: Crown made late disclosure of important evidence two days into trial. Late disclosure was inadvertent. Accused claimed her right to make “full answer and defence” was compromised, denying her right to fundamental justice under s. of Charter. Accused applied for exclusion of evidence or mistrial under s. 24(1) of Charter. Issue: Should evidence be excluded or mistrial ordered? Result: Mistrial ordered. Owing to pre-trial steps taken by accused, including not re-electing trial by judge alone until Crown disclosure was thought to be complete, accused had been prejudiced. Not appropriate to exclude highly relevant evidence. This would frustrate truth-seeking function of court when Crown non-disclosure was inadvertent. Mistrial would allow accused to return to “pre-prejudice’ position, while preserving the interest of Crown and public in having all relevant evidence presented at trial. 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: R. v. Calder, 2010 NSSC 146 Date: 20100414 Docket: CRH 316393 Registry: Halifax Between: Her Majesty the Queen v. Anne Calder DECISION ON CHARTER APPLICATION Restriction on Publication: It is ordered that there shall be ban on publication of any reference to “new evidence” mentioned by counsel in submissions in court on April 13, 2010. The ban will also apply to paragraph [5] of this decision. Judge: The Honourable Justice Peter Bryson Heard: April 13, 2010, in Halifax, Nova Scotia Decision: April 14, 2010 (Orally) Written Release: April 19, 2010 Counsel: Paul Adams, for the Crown Craig Garson, Q.C., for the Defendant By the Court: [1] Anne Calder brings an application for relief under s. 24(1) of the Charter alleging that the Crown’s intention to lead newly discovered evidence in these proceedings compromises her s. and 11(d) Charter rights. In essence, she claims that her ability to make “full answer and defence” to the charges against her will be impaired if this new evidence is adduced in this trial against her. She seeks exclusion of this evidence or mistrial, with corollary relief. [2] Ms. Calder faces three count Indictment for trafficking and possession for the purpose of trafficking contrary to the provisions of ss. 5(1) and (2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19. [3] The new evidence first came to Crown counsel’s attention during a lunch break last week, following the hearing of a voir dire and a day and one-half of evidence in the trial proper. Defence counsel was immediately notified and disclosure was provided to defence counsel within twenty-four hours of the Crown learning of the new evidence. New Evidence [4] To place the significance of the new evidence in context, it is necessary to say something about the posture adopted by Ms. Calder in her defence. It is clear that she has taken the position that she had no knowledge of the contents of the prisoner package seized following the search of Thomas Izzard and of the other evidence of drugs seized from her home pursuant to search warrant executed soon thereafter. To that end, through her counsel, she negotiated number of matters with the Crown. At very early stage, she negotiated an agreement that would preserve her right to re-elect from trial by judge and jury to trial by judge alone on appropriate notice to the Crown. In fact, this re-election did not occur until March 9, approximately month before the trial began and at time when Crown disclosure was complete. More recently, Ms. Calder negotiated an agreement with the Crown that she would not contest the admissibility of video taped statement that she gave to police on the night of July 14, 2009 on the Crown’s undertaking to tender that evidence in the Crown’s case. She also agreed that if motion to dismiss at the conclusion of the Crown’s case was unsuccessful, she would testify in her own defence. The Crown rightly points out that this undertaking was unenforceable. Nevertheless it was made in the context of the Crown’s agreement to lead the video taped statement. During that statement, Ms. Calder was questioned about her knowledge of the drugs found in this case. She was plainly putting her knowledge in issue. [5] [Removed publication ban] [6] It is immediately obvious that the new evidence can be used by the Crown to impeach Ms. Calder’s testimony and contradict things she had told to Sergeant Kelly in her video taped statement. It is clear that the evidence goes to the mens rea element of the offences alleged against Ms. Calder and goes directly to the issue of her credibility. [7] The Crown and the defence both agree about the potential importance of the evidence to the issues at trial and what use the Crown would make of this new evidence. [8] Ms. Calder argues that the Crown’s intention to adduce the newly discovered evidence has adversely affected her approach to the trial. She made important tactical decisions on the strength of disclosure received from the Crown relating to such things as her election to trial, agreements with respect to the video taped evidence and her undertaking to give evidence in the event that charges against her were not dismissed on a defence motion following the close of the Crown’s case. Ms. Calder says she gave up her right to contest the admissibility of the video taped evidence, her right not to call defence evidence and her right to remain silent. [9] It is clear from R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] S.C.R. 411, R. v. Bjelland 2009 SCC 38 (CanLII), [2009] S.C.R. 651 and other Supreme Court and lower court decisions that the burden rests with Ms. Calder to prove on balance of probabilities that Charter breach has occurred. It is not enough to show non-disclosure; rather actual prejudice must also be demonstrated. According to the Supreme Court of Canada in Bjelland, 26, Ms. Calder must show how the late disclosure evidence would have affected the decisions that she made. If she is successful, it is then for the court to fashion remedy that preserves and balances the interests of both the accused and the Crown. [10] There is no dispute between the parties on the general obligations of disclosure imposed on the Crown beginning with the Supreme Court’s decision in Stinchcombe, 1991 CanLII 45 (SCC), [1991] S.C.R. 326, which has been followed and elaborated on ever since it was decided in 1991. Importantly, in Stinchcombe, the Supreme Court recognized that initial disclosure by the Crown should occur before the accused is called upon to elect the mode of trial or to plead. The Supreme Court recognized in Stinchcombe that these rights were crucial steps the accused must take that may affect her rights in fundamental ways. [11] In R. v. Dixon, 1998 CanLII 805 (SCC), [1998] S.C.R. 244, Justice Cory, quoting the Supreme Court in R. v. Egger, 1993 CanLII 98 (SCC), [1993] S.C.R. 451, pointed out that Crown disclosure can affect such questions as how the accused meets the Crown’s case, advances defence or otherwise makes decision that may affect the conduct of the defence i.e., whether to call evidence. In the circumstances of this case, Ms. Calder has satisfied me that last week’s late disclosure to her did adversely affect her owing to decisions that she had already made regarding her defence and trial strategy. [12] The Crown has argued strenuously that the information which it has now recently disclosed was already in the possession of Ms. Calder because she participated in the discussions with Corporal Vail. The Crown cites the Nova Scotia Court of Appeal in R. v. C. S. P. (1995), 1995 CanLII 7503 (NS CA), 141 N.S.R. (2d) 207 and particularly refers the court to 17. In response, Ms. Calder argues that the key is not her general state of knowledge but her knowledge of the evidence the Crown intends to adduce her against her. In C. S. P. the information brought to the accused’s attention was information that enhanced the accused’s ability to challenge the complainant’s credibility, although it turned out that the accused already had the information. This case is quite different where the evidence to be adduced is highly prejudicial in light of the pre-trial agreements and decisions made by Ms. Calder. Moreover, as Ms. Calder points out, the fact that the accused may have been previously aware of evidence that the Crown suddenly wishes to adduce, cannot be the test. By way of example, the Alberta Court of Appeal did not take that view in R. v. Antinello, 1995 ABCA 117 (CanLII), [1995] 165 A.R. 122, where new evidence regarding an inculpatory statement by the accused was brought forward. Clearly the accused in that case would have known of his own inculpatory statement. The key was not the state of his knowledge, but his knowledge of the evidence against him. [13] I am satisfied on a balance of probabilities that Ms. Calder has succeeded in proving a breach of her right to make full answer and defence. hasten to add, however, that don’t consider the breach by the Crown to have been deliberate. The information which was only disclosed last week was in the possession of the police and cannot treat Corporal Vail as somehow unconnected with the Crown, difficult though it may have been to “connect the dots.” do accept that Crown counsel had no prior knowledge of this evidence and that until last week, neither did the immediate investigative team. Counsel acted quickly and appropriately when he learned of this new evidence. Nevertheless, Charter breach is made out on the evidence. Prejudice [14] Ms. Calder has been prejudiced in a number of ways by this new evidence: (1) First, she has pursued strategy that placed in issue her knowledge about the contents of the drug packages. (2) Further to that strategy she agreed not to contest the admissibility of the video taped statement that she gave to police. (3) Also further to that strategy, she agreed to testify if her motion to dismiss at the end of the Crown’s case were unsuccessful. (4) At an early stage, she entered into specific agreement regarding re-election of her method of trial, which preserved that re-election until she had full Crown disclosure. [15] It is obvious that not every late disclosure will prejudice mens rea defence. But in this case, Ms. Calder took positive steps to place her knowledge and intent at issue. She agreed to have the video taped statement go in without contest. During that video, knowledge and intent are canvassed by Sergeant Kelly, who even raises the issue of willful blindness. [16] The Crown argues that this new evidence does not go to voluntariness. And one might argue that Ms. Calder was not giving up much because the video taped statement may well have been ruled admissible anyway. But this is not the point. The point is that Ms. Calder gave up the right to challenge its admissibility, based on what the defence then knew of the Crown’s case. [17] Having found that Ms. Calder has been prejudiced, the court must decide on an appropriate remedy. In R. v. Bjelland, supra, the Supreme Court of Canada emphasized the need to fashion remedy appropriate to the prejudice suffered by an accused from late disclosure. However, in crafting this remedy, the court must not simply have regard to the rights of the accused but also to the rights of the Crown and the public generally. The accused is entitled to fair process. But the trial must be fair from the perspective of the Crown and society more broadly. Here it is useful to refer to the words of Justice McLachlin, (as she then was) cited in Bjelland from R. v. Harrer, 1995 CanLII 70 (SCC), [1995] S.C.R. 562 at 45: At base, fair trial is trial that appears fair, both from the perspective of the accused and the perspective of the community. fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, 1987 CanLII 25 (SCC), [1987] S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused. [Emphasis added.] [18] In Bjelland the Court was considering whether or not trial judge’s decision to exclude evidence for late disclosure was an appropriate remedy. The Court held that trial judge should only exclude evidence for late disclosure in exceptional cases where late disclosure renders the trial process unfair and this unfairness cannot be corrected through an adjournment and disclosure order or where exclusion is necessary to maintain the integrity of the justice system itself. The exclusion of evidence has an impact on trial fairness from society’s point of view because it impairs the truth seeking function of the court. [19] It can be argued that some of the agreements Ms. Calder made and the choices to which she committed can still be retrieved. The court could relieve her of previous agreements with respect to admissibility of the video taped statement and the qualified commitment to testify in her own defence, which is probably unenforceable anyway. That would not address her choice of mode of trial which as Stinchcombe points out, is an important choice that may affect her rights in fundamental way. [20] Having considered the matter carefully, I am not satisfied that I can cure the prejudice of late disclosure to Ms. Calder by an adjournment or other order at this late stage. In particular, the one thing which cannot retrieve for Ms. Calder is her right to re-elect, which was concern for her from the beginning as is apparent from the correspondence between counsel which has been placed before the court. [21] In my view, Ms. Calder’s brief correctly summarizes her evidence with respect to her decision to re-elect. In this respect, refer to excerpts from pages and as follows: Based on the disclosure provided and the disclosure anticipated to be forthcoming Ms. Calder made significant decisions with respect to the conduct of her defence. Specifically, based on the disclosure provided and the disclosure anticipated to be forthcoming, Ms. Calder provided instructions to elect trial by Judge and jury and to waive her right to Preliminary Inquiry. Of significance is the safeguard which defence counsel negotiated with the Crown prior to her first appearance on September 2nd. Specifically, the Crown agreed in writing that should Ms. Calder wish to re-elect her mode of trial from Supreme Court Judge and jury to be tried by Supreme Court Judge alone the consent of the prosecutor to said re-election would be provided with the expectation the Crown would receive reasonable notice of such request prior to trial. Ms. Calder’s decision to give up her right to be tried by Judge and jury was significant decision following thorough review of all the evidence disclosed together with other factors. Ms. Calder’s formal re-election took place before Your Lordship on March 9th. [22] Notably in Bjelland, the Court criticized the trial judge for not offering the accused right of re-election but of course that motion was heard by the trial judge before the trial had begun and before evidence had been called. That option is no longer available to me. [23] On the other hand, I am satisfied that proceeding with the trial without this new evidence would be unfair to the Crown and would not be in society’s interests generally because cases should be decided on all relevant and admissible evidence. The “truth seeking” function of the court would be compromised if I were to grant an order excluding evidence which the parties clearly recognize as important. In my view, this new evidence should be heard, but not by this court and not in this trial. Accordingly, and with much reluctance I have come to the conclusion that a mistrial should be ordered. [24] The court is always reluctant to order mistrial except in the clearest of cases and when the impugned conduct undermines trial fairness or the decision making process (R. v. R. (1994) 1994 CanLII 3447 (ON CA), 94 C.C.C. (3d) 168 Ont. C.A.; R. v. Paterson, (1998), 1998 CanLII 14969 (BC CA), 122 C.C.C. (3d) 254 B.C.C.A. [25] On the other hand, there is compelling authority that mistrial is the appropriate remedy for late disclosure which has affected an accused’s pre-trial rights: (R. v. T. (L.A.) 1993 O.J. No. 1650 (Ont. C.A.)). R. v. T. the Court of Appeal states in the 4th last paragraph: It is apparent from the court’s statement in Stinchcombe, supra, at p. 14, previously quoted, that the disclosure of evidence by the Crown can affect the defence’s election with respect to mode of trial or to the plea. Defence counsel argued that the late disclosure by the Crown may have affected the accused’s choice of forum in his decision to testify. While this argument would not necessarily succeed in every case, would give effect to it in this case having regard, among other things, to the clear statement of defence counsel on the record. The late disclosure may have also affected the ability of defence counsel to attack the complainant’s credibility which was critical in this case. [26] The Crown expresses well founded concern that late disclosure could result in re-elections on regular basis. If this were to happen before trial, it should not present significant problem because the accused can be given the opportunity of re-electing at that stage. If the accused is sincere about re-electing, she has her remedy. If not, the trial can proceed as scheduled. On the other hand, if late disclosure happens after the trial begins, the accused would still need to lead evidence that the right to re-elect was one that was preserved and was important in the context of full disclosure. In this case, Ms. Calder has satisfied me that the right of re-election was important to her and was preserved and was not exercised until full Crown disclosure had been concluded. [27] With respect to the corollary relief sought by Ms. Calder – I agree that she should be released from undertakings and agreements reached to date and that she should have a right to re-elect. However, am not satisfied that she should be entitled to preliminary inquiry. The preliminary inquiry rights were waived at an early stage when disclosure was to her knowledge by no means complete. recognize that preliminary inquiries do have the incidental purpose of providing some pre-trial discovery to the accused. But primarily they are for the purpose of determining whether an accused should be committed for trial. Moreover, there is no suggestion that Crown disclosure is incomplete. Accordingly, would not order that Ms. Calder now be entitled to preliminary inquiry. [28] There has been a mistrial. Ms. Calder is relieved from her previous agreements and undertakings with the Crown regarding trial process. She is entitled to re-elect. Addendum At the conclusion of the decision, Ms. Calder moved for continuation of the publication ban on the “newly discovered evidence” mentioned in court yesterday and in the decision today. The ban is continued and will also apply to paragraph [5] of this decision.

The accused, who faced three counts of trafficking and possession for the purposes of trafficking, had negotiated agreements with the Crown that preserved her right to re-elect from a trial by judge and jury to a trial by judge alone and provided that she would not contest the admissibility of a video statement she had given to the police and, if a motion to dismiss at the conclusion of the Crown's case was unsuccessful, she would testify in her own defence. Following a voir dire and one-and-a-half days of trial, new evidence (which could be used to impeach the accused's credibility and contradict things she had told the police in the video statement) came to the Crown's attention. The accused argued that the admission of this new evidence would adversely affect her approach to the trial as important tactical decisions had been made on the strength of the Crown's previous disclosure. Mistrial declared; the accused is released from the undertakings and agreements made to date and has the right to re-elect her mode of trial. The late disclosure breached the accused's ability to make full answer and defence owing to the decisions she had already made regarding her defence and trial strategy and prejudiced her in a number of ways, which prejudice could not be cured by an adjournment or other order at this late stage. However, to proceed with the trial without the new evidence would be unfair to the Crown and compromise the court's 'truth seeking' function.

7_2010nssc146.txt

nan 1999 SKQB 151 Q.B.G. A.D. 1998 No. 1988 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: CASE CREDIT LTD. and GUY POIRIER DEFENDANT R.S. Smith, Q.C. J.C. Krueger for Case Credit Ltd. C.M. Richmond for Guy Poirier JUDGMENT KRAUS J. October 26, 1999 [1] Guy Poirier farms with his father and brother. They operated 5000 acres in 1997 but reduced their operation to 2000 acres the following year because of losses caused by low grain prices. [2] In 1997, Mr. Poirier acquired sprayer. Its value was agreed to be $94,600.00 by the parties. Mr. Poirier did not have $23,650.00, being 25% of the agreed value, as down payment, but he did have trade-in which was agreed to have value of $10,000.00. The dealer and Mr. Poirier entered into a standard form Finance Lease Agreement which provided for an "advance payment" of $9,320.67 and the same amount by semi-annual installments commencing December 15, 1997, and continuing until December 15, 2001, with the final "termination value" payment of $23,650.00 due on June 15, 2002, to be paid at Mr. Poirier's option if he elected to purchase the sprayer. The evidence is clear that the parties treated the trade-in as the advance payment (but the Agreement does not define it in that way) even though the value of the trade-in does not equal the amount of the advance payment; the difference being $679.33 (between $10,000.00 and $9,320.67). [3] The central issue is whether the Agreement is a lease or a security agreement. Case Credit argues that it is a lease and that liquidated damages should be awarded in accordance with clause two. Mr. Poirier argues that it is a conditional sales agreement and that Case Credit's right is restricted to repossession and sale by s. 46(2) of The Saskatchewan Farm Security Act. Case Credit framed the Agreement as a lease, but the Agreement itself uses notions such as retail financing and secured party. In written notices and other communication to Mr. Poirier, subsequent to his default of the first payment on December 15, 1997, Case Credit used nomenclature such as principal, past due interest, conditional sales contract, purchase of equipment, realize on security and retail sales contract. On January 6, 1998, Case Credit wrote Mr. Poirier demanding payment of $10,122.72 which, according to Case Credit, was comprised of $9,973.12 for "principal" and $149.60 for "past due interest". In its letter, Case Credit gave Mr. Poirier notice of his default under "... the conditional sales contract that you signed for the purchase of equipment...". On the same date, Case Credit also sent to Mr. Poirier "Notice of Intent to Realize on Security" which specified the "Retail Installment Contract", as being the security held. Framing the Agreement as lease is not solely determinative of the nature of the transaction, any more than subsequent reference by Case Credit to the Agreement as being conditional sales contract makes it such. The construction and interpretation of the nature of the Agreement is a question of law. [4] The primary incidents of ownership are use of the sprayer for all of its useful life with the obligation to pay the capital cost plus the cost of investment, acquisition of substantial interest in the sprayer, and loss or gain from unusual depreciation or appreciation of the value of the sprayer (Saskatchewan and Manitoba Personal Property Security Acts Handbook, Cuming, R.C. Wood, R.J., Carswell Professional Publishing, 1994). There is no evidence as to the useful life of the sprayer, nor the capital cost, nor the cost of investment, nor whether there was depreciation or appreciation of value. There was evidence that the total of all payments ($107,536.03) under the Agreement, including the final termination value option payment, is equivalent to the total payments if made under sales contract; that equivalence is achieved by the dealer employing the same interest rate to lease as to sales transaction but that interest rate is undisclosed in the Agreement relating to the amount of the payments. The termination value of $23,650.00 was the balance at the due date (June 15, 2002), payable in the event of exercise of the option, and was determined by the agreed initial value of the sprayer, less the value of the trade-in and the amount of payments employing an interest component. The termination value was not determined by the anticipated value of the sprayer in June, 2002; rather, it is 25% of the value of $94,600.00, as agreed in June, 1997. The evidence is that the value of the sprayer at the end of five years (June, 2002) would depend upon market fluctuations. Case Credit argues that this option price is substantial, and, the reasoning found in Re Ontario Equipment (1976) Ltd. (1981), 1981 CanLII 2593 (ON SC), 33 O.R. (2d) 648 supports its contention that the Agreement is lease. Mr. Poirier argues, on the basis of the same case, that the option payment was merely the deferred down payment and is not substantial portion of the fair market value. However, the court must be able to ascertain the probable value of the sprayer at the end of the Agreement, in June, 2002, and, as Mr. Mohr testified on behalf of Case Credit, that value would depend upon market fluctuations. On its face, the option payment of $23,650.00 does not appear to be nominal amount, but, in the absence of evidence, am unable to determine whether it is "substantial sum" as being the test employed in the Ontario Equipment case. The Agreement does not determine the market value of the sprayer in June, 2002, and in light of the evidence that it depends on market fluctuations, cannot determine whether the option price would be substantially less than the fair market value in June, 2002, or equivalent to it, or more. [5] The Agreement has many of the attributes of ownership and collectively show that Mr. Poirier acquired a substantial interest in the sprayer. First, Mr. Poirier was to have possession and the unrestricted right to use the sprayer (provided that he did not exceed 500 base hours annually, in which event he agreed to pay $75.00 per excess hour. However, the base hours were high and it was reasonably expected that the annual usage would be less than the base hours; indeed, the base hours were not exceeded during the first, and only, year of operation). The sprayer was used (not new) and the Agreement shows that it had 680 hours when it was acquired by Mr. Poirier. The evidence was that new unit would sell for approximately $120,000.00, or approximately $25,000.00 more than the subject sprayer. Second, the total payments under lease are equivalent to the total payments under sales contract. Third, Mr. Poirier had an option to acquire title by making the final termination value payment. Fourth, Mr. Poirier was to bear the risk of loss and obligations for maintenance and insurance. In essence, the Agreement is a conditional sales contract whereby title was reserved until Mr. Poirier elected to pay the final payment. Ergo, the transaction falls within the ambit of The Saskatchewan Farm Security Act, and Case Credit's right to recover the unpaid purchase money is restricted to repossession and sale. [6] References in the Agreement to "the retail financing agreement" and to "secured party" reinforce the interpretation that this transaction falls within the ambit of The Saskatchewan Farm Security Act; s. 46(4) of the Act provides that it applies "... to all sales affected by way of security agreement creating purchase money security interest covering the whole or part of the purchase price of the article sold". Definitions of secured party, security agreement and security interest in The Saskatchewan Farm Security Act apply to Case Credit, its interest, and the Agreement. [7] The second issue is whether the consent by Mr. Poirier to give up possession was conditional upon his release from further liability. However, consideration of this issue is only necessary in the event that the Agreement is lease, and if have correctly interpreted the Agreement to be conditional sales contract, Case Credit's claim is barred by The Saskatchewan Farm Security Act and the issue of consent is nugatory. But, if the Agreement is lease and is covered by The Saskatchewan Farm Security Act, would find that Mr. Poirier's consent to give up possession was conditional upon his being released from further liability. The evidence is uncontradicted that Mr. Poirier's consent was subject to that condition. accept Mr. Poirier's further evidence that he would have continued to use the sprayer to earn income from custom work or he would have made other arrangements to bring current the payment of $9,320.67 due December 15, 1997, had he known that he would continue to be held responsible for payments. Further, Mr. Poirier's past experience with Case Credit in respect of sales contracts of his bailer and tractor was that he gave up possession without claims for deficiencies being advanced against him. But, the evidence is equally clear that Case Credit always cautioned Mr. Poirier that his liability would not be extinguished. [8] What is the effect of this evidence? Case Credit obtained possession of the sprayer earlier than the 40 day notice period provided in s. 52 of The Saskatchewan Farm Security Act, but should have waited to obtain possession after expiration of the 40 day notice period in these circumstances where the effect of the condition imposed by Mr. Poirier upon his consent to early possession was unclear. Certainly, the intention of the legislators in framing the Act (ss. 48, 50 and 52) is clear: Case Credit must serve on Mr. Poirier notice of its intention to take possession of the sprayer, and, 40 days after the date of service, Case Credit may take possession of the sprayer, absent an application by Mr. Poirier for hearing by the court. Case Credit cannot foreclose Mr. Poirier's entitlement to 40 days' notice and take early possession of the sprayer by relying upon Mr. Poirier's consent in these circumstances where his consent was not unconditional nor in writing nor otherwise unequivocal. To validate the early repossession in these circumstances would defeat the intention of the legislation to afford protection to farmers against loss of property interests without compliance with legislative provisions by creditors who are governed by the Act. If the Agreement is lease, hold that Case Credit is secured party since it has an interest in the sprayer that secures payment or performance of an obligation, and Case Credit cannot take possession of the sprayer except in accordance with Part IV of The Saskatchewan Farm Security Act (ss. 2(1)(y), 2(1)(aa) and 47). Justice Malone determined creditor to be secured party in similar circumstances: Christianson v. Allis-Chalmers Canada Inc. et al. (1990), 1989 CanLII 4584 (SK QB), 79 Sask. R. 232 (Q.B.) at 234. [9] What is the effect of the early repossession? If the Agreement is lease, and is covered by The Saskatchewan Farm Security Act, would hold that Mr. Poirier is released from all liability with respect to the sprayer under s. 55 of the Act. But would not go further. The issue was not plead in defence, although the parties did canvass the circumstances within the framework of this summary trial, albeit without the benefit of discoveries or pre-trial conference. It would be unjust to make any further order under the Act in these circumstances and in the absence of evidentiary basis, for example, of the fair market value of the sprayer at the time of the seizure as required for an order under s. 55(c) of the Act. [10] Only if the Agreement is lease and is not covered by The Saskatchewan Farm Security Act, would hold that Case Credit is not barred by implied acceptance of Mr. Poirier's condition that he be released from further liability, because of exclusionary clause eight of the Agreement. must follow the principles enunciated in Société Generale (Canada) v. Gulf Canada Resources Ltd., 1995 ABCA 259 (CanLII), [1995] W.W.R. 453 (Alta. C.A.). In that event, would grant judgment to the plaintiff for $42,089.00 with costs on the basis of Column of Schedule of the Tariff of Costs. [11] The plaintiff's claim is dismissed. The defendant is awarded costs on the basis of Column 3 of Schedule I of the Tariff of Costs.

The farm implement dealer and the defendant entered a standard form Finance Lease Agreement which provided for an 'advance payment' and semi-annual installments with the final 'termination value' payment to be paid at the defendant's option if he elected to purchase the sprayer. The central issue was whether the Agreement was a lease and liquidated damages should be awarded in accordance with clause two, or a conditional sales security agreement whereby the dealer was restricted to repossession and sale by s.46(2) of the Saskatchewan Farm Security Act. HELD: The plaintiff's claim was dismissed with costs on Column 3. 1)The Agreement was a conditional sales contract whereby title was reserved until the defendant elected to make the final payment. The transaction falls within the ambit of the Saskatchewan Farm Security Act and the dealer's right to recover the unpaid purchase price is restricted to repossession and sale. Although the dealer framed the Agreement as a lease the Agreement itself used notions of retail financing and secured party. Nomenclature such as principal, past due interest, conditional sales contract, purchase of equipment, and retail sales contract were used. The construction and interpretation of the nature of the Agreement is a question of law. The Agreement had many attributes of ownership and collectively showed that the defendant acquired a substantial interest in the sprayer. He had possession and unrestricted right to use the sprayer with high base hours. The total payments were equivalent to the total payments under sales contract. The defendant had the option to acquire title by making the final payment. He bore the risk of loss and obligation for maintenance and insurance. 2)The court could not determine whether the option price would be substantially less, equal or more than the June 2002 fair market value of the sprayer. 3)If the Agreement is lease the defendant's consent to give up possession was conditional upon his release from further liability. Case Credit cannot foreclose the entitlement to 40 days notice and take possession of the sprayer by relying upon conditional unwritten consent. To validate early repossession would defeat the intention of the legislation to protect creditors. Case could take possession only in accordance with Part IV of the SFSA. 4)If the Agreement is lease and covered by the SFSA, the defendant would be released from all liability under s.55. It would be unjust to make any further order in a summary trial without the benefit of discoveries or pre-trial conference and without evidence of the fair market value at the time of seizure. 5)If the Agreement is lease and not covered by the SFSA, it would be held that the dealer was not barred by implied acceptance of the condition the defendant be released from further liability because of the exclusionary clause. Judgment would have been granted for $42,089 with costs on Column 3.

e_1999skqb151.txt

nan THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 69 Date: 20120628 Between: Docket: CACR2177 Valerica Cretu and The Attorney General of Canada (on behalf of Romania) Before: Caldwell J.A. Counsel: Chris Veeman for the Applicant Bruce Gibson for the Respondent Application: From: Pursuant to the Extradition Act, S.C. 1999, c. 18 Heard: June 27, 2012 Disposition: Dismissed Written Reasons: June 28, 2012 By: The Honourable Mr. Justice Caldwell Caldwell J.A. [1] Valerica Cretu applies for judicial interim release pursuant to s. 20(b) of the Extradition Act, S.C. 1999, c. 18, and s. 679 of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Cretu is Roma and Romanian national who has resided in Canada since his arrival here exactly eight years ago. Romania seeks Mr. Cretu’s extradition from Canada so that he might serve a three-year prison sentence imposed as a result of his conviction, in that country, for criminally negligent homicide (an offence equivalent to that of manslaughter in Canada). Romania is represented in this proceeding by the Attorney General for Canada. [2] The factual background to this application is as follows. On October 6, 2002, Mr. Cretu, then a resident of Romania, while driving his car struck and killed a pedestrian. Mr. Cretu did not remain at the scene of the collision. He was later apprehended and he admitted consuming alcohol and striking the victim. Romania charged him with criminally negligent homicide and leaving the scene of an accident. According to Romanian court records, Mr. Cretu admitted his wrongdoing and, on December 19, 2003, he was convicted and sentenced to two years on the former offence and ten months on the latter, which sentences were to be served concurrently but as non-custodial sentences. He also received four years’ probation. [3] Mr. Cretu appealed the decision; but, on April 29, 2004, Romanian court increased the non-custodial portion of his sentence to three years and extended the probationary term of his sentence to five years. Then, on December 7, 2004, an appellate court converted the three-year non-custodial portion of Mr. Cretu’s sentence to three years imprisonment. In his affidavit Mr. Cretu says the conversion of his sentence to term of imprisonment occurred after Romanian authorities had learned of his absence from that country and then re-opened his criminal case. However, Romanian court documents (which were exhibited to Romania’s affidavit in support of its opposition to the within application) indicate Mr. Cretu had initiated, at least in part, the appeals which underlay the December 7, 2004, decision of the Romanian appellate court. [4] Upon his arrival in this country on June 27, 2004, Mr. Cretu was detained by Canadian authorities for approximately seven weeks, during which time he made claim for refugee protection pursuant to the Immigration and Refugee Protection Act, S.C. 2001, c. 27. In his refugee claim documents, he disclosed his criminal conviction and sentence in Romania. He was ultimately released from detention in 2004 on the strength of $5,000 cash and surety bond. He then relocated to Saskatoon, Saskatchewan. On August 1, 2006, the Refugee Protection Division of the Immigration and Refugee Board of Canada determined Mr. Cretu to be “Convention refugee” and therefore entitled to protection as refugee under the Immigration and Refugee Protection Act, which status he continues to hold today. “Convention” refers the United Nations Convention Relating to the Status of Refugees (the “Convention”), to which Canada is signatory. [5] In 2007, Romania initiated extradition proceedings against Mr. Cretu. He was briefly detained by Canadian police in 2007, although there is some uncertainty as to whether Canadian authorities had actually issued warrant for his arrest at that time. In either case, he was released and heard nothing more for five years. [6] On March 8, 2012, the Minister of Justice (Canada) (the “Minister”) issued an Authority to Proceed in relation to Mr. Cretu pursuant to s. 15 of the Extradition Act. The Authority to Proceed authorized the Attorney General of Canada to seek an order for Mr. Cretu’s committal for extradition to Romania. On June 5, 2012, the Minister substituted the Authority to Proceed seeking an order of committal in relation to conduct which corresponds to the Criminal Code offence of manslaughter, contrary to s. 234. [7] On May 30, 2012, the Court of Queen’s Bench for Saskatchewan issued warrant for Mr. Cretu’s arrest. He was arrested on June 7, 2012, and judge of the Court of Queen’s Bench ordered Mr. Cretu’s continued detention based on the primary and tertiary grounds set out in ss. 515(10)(a) and (c) of the Criminal Code. [8] On June 14, 2012, the Queen’s Bench judge heard committal application in relation to Mr. Cretu and ordered him committed for extradition in respect of the offence of manslaughter. The judge also ordered that he remain in custody and he remains in custody pursuant to that order. Mr. Cretu has not appealed from the committal order. [9] Pursuant to s. 40(1) of the Extradition Act, the Minister may, within 90 days after the date Mr. Cretu’s committal, order his surrender to Romania. However, under s. 43 of the Extradition Act, Mr. Cretu has the opportunity to make submissions to the Minister on any ground which may be relevant to the Minister’s decision regarding his surrender, but he must make these submissions within 30 days of his committal order. [10] By this application, Mr. Cretu seeks an order of this Court releasing him from custody pending the Minister’s decision on his surrender to Romania. Romania opposes the application. [11] Section 20 of the Extradition Act provides that Mr. Cretu’s application for judicial interim release shall be determined pursuant to s. 679 of the Criminal Code, with any modifications that the circumstances require. It is important to note that s. 20 of the Extradition Act incorporates the provisions of s. 679 of the Criminal Code, as opposed to those of s. 515 of the Criminal Code. Section 679 deals with the judicial interim release of an offender pending an appeal against conviction or sentence; whereas, s. 515 deals with the judicial interim release of an accused pending trial. The tests which must be met by an applicant under s. 679 and under s. 515 differ in part in recognition of the fact that the jeopardy facing the applicant is more immediate in an application for judicial interim release pending an appeal against conviction or sentence than it is in an application for judicial interim release pending trial. Furthermore, the authority of the reviewing court under s. 679 is confined to determining whether an individual should be released from custody; the Court is not empowered to delve into the validity of the proceedings against the applicant or to assess, other than in limited way, the merits of the applicant’s appeal therefrom or response thereto. [12] Section 679(3) of the Criminal Code is straightforward. For the purposes of Mr. Cretu’s application, he must establish the following three things to obtain his release from custody pending the Minister’s decision under s. 40 of the Extradition Act: (a) the appeal or application for leave to appeal is not frivolous [i.e., his submissions to the Minister are not frivolous]; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest. [13] Turning to s. 679(3)(a) of the Criminal Code, Mr. Cretu must establish that his grounds of appeal are not frivolous. In the context of review by the Minister under s. 40 of the Extradition Act, this means that he must establish that his s. 43 submissions to the Minister are not frivolous. Here, the Crown concedes that Mr. Cretu has met this low threshold. agree. He is Convention refugee. It is not my place to look behind that status on an application of this nature. It is sufficient that Mr. Cretu’s status as Convention refugee affords an arguable basis for submitting to the Minister that he should not be surrendered to Romania. also accept that Mr. Cretu’s submissions to the Minister under s. 43 of the Extradition Act represent his best opportunity to avoid his surrender to Romania. As such, although there is limited evidence before me as to the nature of the case to be met or of his intended submissions in that respect, am, nevertheless, satisfied that Mr. Cretu has met the s. 679(3)(a) threshold in that his submissions to the Minister will not be frivolous. [14] As Mr. Cretu has recognized in his materials, the second test under s. 679(3) presents the most difficult hurdle for him to clear. Under s. 679(3)(b), he must establish that he will surrender himself into custody in accordance with the terms of any order for his release. [15] At the outset, Romania points to the jurisprudence under s. 20 of the Extradition Act which stands for the proposition that adherence to the principle of honouring Canada’s international obligations requires that court, when considering an application for judicial interim release in an extradition proceeding, limit the assumption of risk of non-appearance more severely than might otherwise be acceptable in the case of domestic proceedings, see: United States of America v. Ross (5 July 1993), Vancouver Registry No. CA017111 (C.A.), at para. 15; United States of America v. Edwards, 2010 BCCA 149 (CanLII), 288 B.C.A.C. 15 at para. 18; and United States of America v. Ibrahim, 2012 BCCA 278 (CanLII), at para. 26, among others. [16] Mr. Cretu notes that in none of the cases cited by Romania was the applicant Convention refugee; as is Mr. Cretu. He submits this fact, and the recent decision of the Supreme Court of Canada in Németh v. Canada (Justice), 2010 SCC 56 (CanLII), [2010] S.C.R. 281, leads one to the conclusion that Canada’s legal obligations under the Convention with respect to non-refoulement displace the limiting effect of its legal obligations under international extradition treaties on level of acceptable risk under the s. 679(3)(b) test; or, as he more bluntly put it, when it comes to the assessment of flight-risk Convention refugee “deserves the benefit of the doubt.” [17] recognize Canada has international obligations under the Convention with respect to non-refoulement, which ostensibly protects refugee (i.e., victim of persecution) from being surrendered to his or her home-jurisdiction (i.e., usually, the persecutor). However, while Canada’s legal obligations with respect to non-refoulement are squarely before the Minister (given the nature of his pending decision under s. 40 of the Extradition Act), Mr. Cretu’s application before this Court is for judicial interim release and does not, in my opinion, engage those legal obligations. More directly, fail to see how either Mr. Cretu’s release or his continued detention pending the Minister’s decision could run afoul of Canada’s international non-refoulement obligations. Put simply, Mr. Cretu’s status as Convention refugee and Canada’s non-refoulement obligations do not displace the well-established requirement that court considering an application for judicial interim release in an extradition proceeding must limit the assumption of risk of non-appearance more severely than might otherwise be acceptable in the case of an application for judicial interim release brought by an offender under the Criminal Code. It is also common sense that the risk of non-appearance in extradition cases is higher in light of the fact the extradition proceedings arise because the detainee does not wish to be returned to the extradition partner. [18] As to the merits of his application, Mr. Cretu submits that it would be “non-sensical” for him to flee prior to the Minister’s decision on surrender as this would, obviously, not stand in his favour with respect to that pending decision. And, as noted, Mr. Cretu says he recognizes that favourable decision from the Minister represents his best opportunity to avoid surrender to Romania. In furtherance of that recognition, Mr. Cretu submits his release will allow him to more effectively deal with Romania’s attempt to extradite him. He says he has experienced difficulties contacting his Calgary-based legal counsel from the correctional centre in Saskatoon where he is being detained which difficulties would be ameliorated by his release. [19] As to flight-risk, Mr. Cretu points to his roots in the community. Among other things, he is in long-term relationship and his common law spouse has agreed to act as his surety. He has been gainfully employed, by the same employer, since 2009. His employer states, in letter exhibited to Mr. Cretu’s affidavit, that he will re-employ Mr. Cretu as soon as he is released from detention. He is well-known in the local Romanian community and member of that community has agreed to act as surety to assist him in obtaining his release. He has also submitted several letters from references who aver to his good character. He states he seeks his release so that he can contribute to his family by working and helping at home. [20] As to other flight-risk factors, although he acknowledges number of driving infractions, he points out he has no criminal convictions in Canada. Mr. Cretu says he has no passport and no Romanian identification and will undertake not to apply for passport or other travel documentation if he is released. Mr. Cretu does not own any real property and is of limited means, but he will put up his Mercedes Benz C230 vehicle as collateral to be forfeited if he fails to surrender to authorities. He estimates its value at $20,000. [21] Romania opposes Mr. Cretu’s release chiefly on the ground that he poses an unacceptable flight-risk if released from detention. Romania submits Mr. Cretu has failed to proffer satisfactory evidence to overcome the heightened risk of his non-appearance. As to the factors set forth by Mr. Cretu, Romania counters that Mr. Cretu’s roots in the community are minimal. He resides with his common law partner of four years, but offers minimal information about his intended activities upon release. He owns no real property and has identified no significant activities which connect him to the jurisdiction. In my opinion, Romania’s characterisation in this respect must be qualified because it overlooks the fact that Mr. Cretu has family and long-term employment in the jurisdiction. However, Romania makes several compelling counterpoints with respect to the nature and assessment of the flight-risk posed in the circumstances. [22] In its oral submissions, Romania argued that the surety package proposed by Mr. Cretu is not satisfactory. As noted, the sureties proffered by Mr. Cretu are his common law spouse and member of the Romanian community in Saskatoon. Romania submits the affidavits from these sureties do not set out any supervision plans and provide no assistance to show how either proposed surety would or could actually ensure that Mr. Cretu abided by any conditions which might be imposed on his release. Further, as to the proposed surety from the Romanian community, there is no indication as to how long the surety has known Mr. Cretu and the surety candidly acknowledged that he received conditional discharge in January 2012 for domestic assault and is therefore presumably himself subject to conditions restricting his activities in the community. As to the actual security proffered, Romania insists the cash and non-cash bond amounts offered by Mr. Cretu and his sureties are, in total, insufficient. Mr. Cretu has no real property and Romania views the potential forfeiture of his personal vehicle as being of little assurance. In sum, Romania submits there is little in Mr. Cretu’s proposed surety package which would give him an incentive to surrender himself into custody. [23] On the whole, Mr. Cretu’s submissions under s. 679(3)(b) were well-argued and directed to the issues at hand. That said, the strongest factor in Mr. Cretu’s favour under s. 679(3)(b) is, in my assessment, the fact that when he was released from detention in 2004 on the strength of $5,000 cash and surety bond he appears to have complied with the terms of that release. Nevertheless, Romania correctly, in my opinion, submits Mr. Cretu has provided few substantive assurances that he will surrender himself into custody given the risk posed. [24] In that respect, Romania notes that Mr. Cretu fled Romania in 2004 in the face of what was then sentence of community-based incarceration and with an appeal of that sentence pending. Romania submits that Mr. Cretu’s failure to abide by the terms of community-based sentence illustrates his inability to comply with court orders in general. Furthermore, the sentence to which he is subject in Romania is now that of three years imprisonment and his rights of appeal in that country are now, according to Romania, exhausted. In addition, Romania notes that Mr. Cretu is also subject to court order to pay damages to the deceased victim’s estate with which he has not, but presumably could have, complied even though he has resided in Canada for the past eight years. These facts, Romania contends, all serve to heighten the risk of Mr. Cretu’s non-compliance with the terms of any order for his release. [25] The risk of non-appearance is further heightened, in Romania’s submission, by the fact Mr. Cretu has now been committed for extradition. In this respect, see: United States of America v. Ross, at para. 12. It is also of considerable note that Mr. Cretu does not face trial in Romania with potential for conviction and then potential incarceration; he has already been convicted and sentenced to term of imprisonment in that country. [26] Mr. Cretu says that his flight from Romania was precipitated by his persecution in that state and that his Convention refugee status indicates an acceptance by Canada of the gravamen of that persecution as fact and nothing before me displaces that fact. He submits his failure to abide by the terms of his Romanian sentence cannot be taken as indicative of an inability to, or determination not to, abide by court orders. have considered this argument but conclude the nature of the application before me is such that must also accept the substance of the Romanian court documents as fact. While Mr. Cretu invites me to look behind these documents to the gravamen of his persecution in Romania, this is not an inquiry can make on the limited materials available to me; nor, in my view, is it appropriate for me to make such an inquiry as these are matters clearly and properly left to the Minister under s. 40 of the Extradition Act. [27] Nor do propose to look behind Mr. Cretu’s Convention refugee status; that he holds this status is fact as well. However, any question as to whether he would face persecution if he is surrendered to Romania in 2012 or after is matter for the Minister to determine under s. 40 of the Extradition Act. Furthermore, it is fact that he failed to abide by the terms of his Romanian community-based sentence and has not satisfied the compensation judgment awarded against him. In this respect, all of Romania’s points are well-made in that these facts do serve to elevate the risk of Mr. Cretu’s non-appearance. [28] In my assessment, the elevated risk of flight in light of the committal order, Mr. Cretu’s failure to abide by a community-based sentence, the nature of the sentence to which he is now subject in Romania, the exhaustion of his appeal rights in Romania, and his desire not to be returned to Romania are important considerations in this case. These considerations are met, to some degree, by Mr. Cretu’s compliance with his 2004 release conditions and his connections to this jurisdiction. Nevertheless, as noted, Canada’s international obligations in extradition proceedings mean that must limit the assumption of risk of non-appearance in this case more severely than the Court would do in an application by an offender made directly under s. 679 of the Criminal Code. In this respect, although reject Romania’s characterisation of Mr. Cretu’s ties to the community as being “minimal”, neither are they great. Finally, Romania’s submissions as to the deficiencies in the nature and extent of the sureties proffered by Mr. Cretu are compelling and I have concluded that the risk of non-appearance is such that it cannot be sufficiently mitigated by release conditions which, on the materials before me, he might be able to meet. [29] Put simply, Mr. Cretu has not established that he will surrender himself into custody were to release him. do not mean to say that the onus on him under s. 679(3)(b) is insurmountable in this case; rather, find that he has not met that onus on the materials before the Court at this juncture. [30] In light of my conclusion under s. 679(3)(b), there is no reason to consider the third test under s. 679(3)(c). [31] I hereby dismiss Mr. Cretu’s application for interim judicial release. DATED at the City of Regina, in the Province of Saskatchewan, this 28th day of June, A.D. 2012. “Caldwell J.A.” Caldwell J.A.

The applicant applied for judicial interim release under s. 20(b) of the Extradition Act and s. 679 of the Criminal Code. Romania sought extradition of the applicant so that he might serve a 3 year prison sentence imposed as a result of a conviction in Romania for criminally negligent homicide with respect to a motor vehicle collision where the accused, while impaired, hit a pedestrian and killed him. The applicant offered surety from the Romania community in Saskatchewan who did not appear to have known the accused for long and offered to put up his car as bond. The applicant had common law spouse in Saskatchewan but owned no real property. HELD: Although the Crown conceded that the applicant had met the relatively low threshold of showing that his application for leave to appeal his extradition order was not frivolous, the Court of Appeal declined to release the applicant. The Court of Appeal held that there is an elevated risk of flight in light of the fact that the applicant has exhausted all appeals in Romania and is facing a 3 year prison sentence. Canada's international obligations in extradition proceedings require the Court to look more severely at the risk of non-appearance than it would if the application was made solely under s. 679 in respect of criminal proceeding in Canada. The sureties offered by the applicant were not sufficient to ensure his attendance at Court. The application for judicial interim release was dismissed.

e_2012skca69.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2017 SKQB 42 Date: 2017 02 07 Docket: QB 827 of 2010 Judicial Centre: Saskatoon BETWEEN: KENNETH GRAHAM and CHRIS PURDY, ROD NICKEL, STEVEN GIBB, CAMERON HUTCHINSON, DALE BRIN, JOHN DOE and CANWEST PUBLISHING INC. Counsel: Alan McConchie for the plaintiff F. William Johnson, Q.C. for the defendants JUDGMENT D.E. LABACH J. February 7, 2017 INTRODUCTION [1] On November 24, 2009, Kenneth Graham commenced libel action against Chris Purdy, Rod Nickel, Steven Gibb, Cameron Hutchinson, Dale Brin, John Doe and Canwest Publishing Inc. [collectively the defendants] alleging that the defendants, acting alone or in concert, had published defamatory comments about him in series of articles in the Star Phoenix newspaper and on websites owned and operated by the newspaper and Canwest Publishing Inc. As result of the publication of these defamatory comments, Dr. Graham said that he suffered loss and damage to his professional and civic reputation and that such loss or damage will continue into the future in light of his professional standing. [2] On June 7, 2010 the defendants filed Statement of Defence to the claim wherein they did not deny publishing the words complained of, in the various articles complained of, but denied that the words were defamatory or that they were made with malice, deliberate calculation or recklessness. According to the defendants, the words complained of formed part of the defendants’ series of fair and accurate contemporaneous reporting of the civil jury proceedings in case involving Dr. Graham in the Saskatchewan Court of Queen’s Bench and that such words fell under the umbrella of “responsible communication”. As such, they have not published any retraction or apology nor does it appear that they have removed the alleged offensive articles from their websites. However, if any one or more of the alleged defamatory meanings are actionable, the defendants believe that Dr. Graham’s reputation was so tarnished at the time of the publications complained of that he did not suffer any damages or loss of reputation at all. [3] On July 14, 1999, Lisa Baert went to the Lloydminster Hospital for tubal ligation. This routine day surgery was performed by Dr. Graham, an obstetrician and gynecologist practicing in Lloydminster. Dr. Graham had done many tubal ligations and Ms. Baert’s surgery appeared to go well. She was discharged later that day and returned home. [4] On July 16, Ms. Baert was rushed back to the hospital in an ambulance, suffering from septic shock. Dr. Graham and general surgeon operated on her and discovered 2-millimetre puncture in her small bowel. The puncture had apparently occurred when Dr. Graham had done the tubal ligation two days earlier. The surgeon removed small portion of Ms. Baert’s bowel. While in surgery she went into cardiac arrest. They stabilized her and made arrangements to air lift her to the Royal Alexandra Hospital in Edmonton, Alberta. [5] In Edmonton, Ms. Baert had to have both her hands and feet amputated. She suffered some brain damage. She spent year in the hospital and at rehabilitation centre before returning to Lloydminster to live in care home. [6] On October 8, 1999 Lisa Baert filed claim in the Saskatchewan Court of Queen’s Bench against Dr. Graham, the Lloydminster Hospital and several nurses alleging negligence. [7] Prior to Baert’s surgery, Dr. Graham had decided to leave Lloydminster. He did not care for the medical community there, his wife had gone back to Edmonton to practice psychiatry and he was getting tired of commuting to Edmonton every weekend. Unfortunately he was unable to find position in Edmonton. Dawson Creek, British Columbia was looking for an obstetrician and gynecologist at this time and they offered him job. He liked the city, the compensation was attractive and in November 1999, he moved to Dawson Creek to practice. [8] On March 1, 2000 an article written by Jason Warick entitled “Botched Surgery Leaves Mom Helpless” appeared in the Saskatoon Star Phoenix newspaper. The article was about Ms. Baert’s surgery. The article came to Dr. Graham’s attention. He was shocked by it. He felt that it was inaccurate, inflammatory and very one-sided. It described Ms. Baert’s bowel as having been “sliced open” when there was only small 2-millimetre puncture in it. The article said that he ignored Mr. Baert when he came out of the operating room but he did not. He spoke to Mr. Baert immediately following the surgery. [9] On March and 3, 2000, two more articles written by Jason Warick appeared in the Star Phoenix. The first, entitled “Mom Longs to be Home with Her Family”, said that Ms. Baert’s bowel had been “slit open” and it described her care as “grossly negligent, malicious, arrogant, and high-handed”. The second article was entitled “Couple Fed Up with Long Wait for Compensation”. This article referred to “botched surgery”, that Ms. Baert’s “intestines were lacerated” and that the surgery was performed in “grossly negligent, malicious, arrogant, and high-handed manner calculated to ignore the rights and objections and complaints of Lisa [Baert]”. Dr. Graham was shocked by these articles and felt they were misleading. [10] On March 9, 2000 an article entitled “Lawsuit News to Hospital that Hired Gynecologist” appeared in the Star Phoenix. This article said that the Dawson Creek Hospital and South Peace Health Council had no clue that Dr. Graham was facing the Baert lawsuit when they hired him. This however was false. The hospital and health council did know about the lawsuit before they hired Dr. Graham because he had told them about it. [11] Prior to these articles appearing in the Star Phoenix, Dr. Graham had never had any complaints regarding his treatment of patients and was doctor in good standing in both Saskatchewan and Alberta. However, the local newspaper in Dawson Creek picked up on these Star Phoenix articles, began reporting on them and started phone line so patients could voice any complaints about Dr. Graham’s treatment of them. In response, and on the advice of the Saskatchewan counsel representing him in the Baert claim, Dr. Graham issued press release and gave press conference in Dawson Creek to counteract what he perceived to be media smear campaign. [12] In conjunction with his press release and press conference, his counsel sent letter dated March 10, 2000 to the editor of the Star Phoenix complaining about the articles written by Jason Warick. The letter stated that the articles caused Dr. Graham irreparable damage both professionally and personally and put the newspaper on notice of his intention to bring an action in libel against them. These articles and the attention they were attracting in the community was giving Dr. Graham bad reputation. [13] In 2002, Dr. Graham performed tubal ligation on Gloria Cooke at the Dawson Creek Hospital. Unbeknownst to the plaintiff, Ms. Cooke had had previous surgery on her bowel and uterus. He noted this at the beginning of the surgery when he inserted camera into her. This made the surgery somewhat more difficult but he continued. In the middle of Ms. Cooke’s surgery, he received an urgent call about pregnant woman in the maternity ward and problems with the baby’s heart rate. He was the only obstetrician and gynecologist in Dawson Creek but finished Ms. Cooke’s surgery before rushing off to deal with this other patient. He kept Ms. Cooke in the hospital overnight for observation. The next day she appeared fine so he discharged her with instructions. [14] The day after her discharge, Ms. Cooke returned to the Dawson Creek Hospital complaining of shortness of breath and pain in her abdomen. Worried she was becoming septic and with no surgeon on call in Dawson Creek, arrangements were made for her to be transferred to Grande Prairie Hospital for immediate surgery. During her surgery in Grande Prairie, she was noted to have small bowel perforation. She was eventually transferred to Edmonton University Hospital for some further surgeries, following which she eventually made full recovery. [15] As result of this incident, Dr. Graham voluntarily stopped performing laparoscopic surgeries and decided to take upgrading to assuage any negative public opinion in Dawson Creek. On December 11, 2002 an article appeared in the Vancouver Sun reporting on Ms. Cooke’s complications and linking the plaintiff’s voluntary suspension of laparoscopic surgeries to this and the Baert case. Similar articles appeared in the Peace River Block Daily News and the Alaska Highway News over the next number of weeks. [16] On March 3, 2003 an article entitled “Local Mother ‘Lucky to be Alive’” appeared in the Peace River Block Daily News. This was story about Dana McLellan. Dr. Graham had performed surgery on her in February 2003 and inserted catheter into her bladder. After surgery there was some blood in her urine. Dr. Graham called specialist and they inserted camera into her bladder. They noticed some blood and clots so they took her back into surgery and repaired small cut in her bladder. Ms. McLellan was stable for few days but eventually was transferred to Vancouver because of nursing requirements. The article made it sound as if Ms. McLellan almost died but that was not the case. [17] On March 5, 2003 another article appeared in the Peace River Block Daily News. The byline in this article read “Third Patient Comes Forward: Complications Followed Surgery to Remove Cyst”. This female patient had been referred to Dr. Graham because of chronic pelvic pain. When he performed surgery on her he noted lot of adhesions and that her ovary was stuck to her bowel. He called surgeon who attended and dissected the ovary off the bowel. In the course of performing the dissection, the surgeon cut the patient’s urator. He brought this to the surgeon’s attention and she stitched it up. Unfortunately the patient developed leakage out of the stitches and had to be transferred to Prince George where urologist fixed the problem. Although the article seemed to blame Dr. Graham for this woman’s problems, he was not responsible for cutting her urator. [18] Complaints were made to the British Columbia College of Physicians and Surgeons following these surgeries and Dr. Graham was investigated. The College issued written report finding no evidence that Dr. Graham was not providing the appropriate level or standard of care to his patients and he was never disciplined. As regards the Gloria Cooke surgery, the College suggested that he should have stopped the surgery when he noted the tissue mass from the undisclosed surgery. Despite this, they did not find that his continuing with the surgery fell below the appropriate standard of patient care. Ms. Cooke eventually started lawsuit against Dr. Graham. It was settled with no liability on his part. [19] The Northern Health Authority also investigated his surgeries but never disciplined Dr. Graham, suspended his hospital privileges or pressured him to resign. [20] With all the negative media publicity, Dr. Graham’s income began to decline. While he was not shunned by colleagues, they made fewer referrals to him. He also began receiving hate mail. In May 2003, Dr. Graham suffered heart attack and at the end of July 2003 had quintuple bypass surgery. He also began suffering some depression. Dr. Graham decided to cease practicing in Dawson Creek and he retired to St. Albert, Alberta. [21] Dr. Graham and his wife had five children. On May 24, 2007, his oldest son committed suicide. On August 19 his wife died of cancer. On September 17 the Baert trial began in Saskatchewan Court of Queen’s Bench. The hospital and the nurses settled out of court but Dr. Graham continued to deny that he was negligent. [22] The trial garnered considerable media interest both in Saskatchewan and across Canada. Chris Purdy, one of the reporters at the Star Phoenix newspaper, was sent to cover the trial. Prior to attending the trial, Ms. Purdy attempted to familiarize herself with the case. In that regard, she read articles that had previously been written about the case, she tried to find other stories the newspaper wrote about the case and she searched other jurisdictions to see if any other articles about the case came up. [23] Ms. Purdy attended the first day of trial but did not attend each and every day of the trial thereafter. She tried to find out when certain witnesses would be testifying and would attend for their examinations-in-chief. She would not often stay for cross-examination because by that time she usually had the salient facts or she had to leave to get story out to meet deadline. She did however make point of attending Dr. Graham’s examination-in-chief and cross-examination as nobody had as yet heard his side of the story. She kept notes of all her attendances at the trial and what occurred when she was there. [24] During the trial, Ms. Purdy observed voir dire. The voir dire concerned an application to allow number of people to testify in relation to “informed consent”. It was during this voir dire that she learned the names of some of Dr. Graham’s former patients or obtained them from Ms. Baert’s counsel. [25] Ms. Purdy attended court on November 22, 2007 to hear the closing arguments of Dr. Graham’s counsel and then again on November 23 to hear the closing arguments of Ms. Baert’s counsel. She next attended court on November 27 to hear the judge’s charge to the jury. She made detailed notes of what she heard on all of these dates. On November 28, 2007, after 51 days of trial, the jury found Dr. Graham not negligent for Ms. Baert’s injuries. [26] Ms. Purdy wrote series of articles about the case during and after the trial. All of these articles were published in the Star Phoenix newspaper and/or on the newspaper’s websites. Following closing submissions, she wrote an article entitled “Final Arguments in Surgery Suit Heard by Court”. This article was published on page A13 of the November 24, 2007 edition of the Star Phoenix and appeared on its websites on that same date. [27] On November 28, 2007, the day the verdict came down, neither Ms. Baert nor Dr. Graham were present in court. After the verdict, Ms. Purdy spoke to Ms. Baert’s counsel regarding the possibility of an appeal. She later spoke to number of people including Les Hurlburt, Lynn Laursen, Sharry Michels and Marleen Burgess. All of these people were either previous patients of Dr. Graham or relatives of his prior patients. She wrote an article entitled “Gynecologist Not Negligent in Tubal Ligation Lawsuit” and it was published on the newspaper’s websites later on November 28. [28] Dr. Graham was at home in St. Albert when the verdict came down. He received call from his counsel advising of the result and was “over the moon” that he was found not negligent and finally exonerated. He organized celebratory supper for him and his children that night at his residence. [29] Donald Graham was living with his father at the time and working on his master’s degree. He described his father as being very excited about the jury’s decision and the case being finished. Another son, Mark, echoed these comments about his father’s reaction to the verdict. Over supper, the Graham family spoke of this being point to move on from given everything their family had recently been through. [30] After supper, Donald Graham went on the internet to search for any stories about the verdict and he came across Ms. Purdy’s November 28 article. They all read the article and the mood changed. Dr. Graham was shocked, mad, dumbfounded, baffled and unhappy that there was nothing in the article about him being vindicated. He felt it was full of untruths and distortions and that it made it appear that he was lucky to have been exonerated in the trial. Nobody from the Star Phoenix had tried to contact him to discuss the verdict or the contents of this article. He felt depressed. [31] Ms. Purdy wrote five more articles: November 29 (two articles), 30, December 1, 2007 and January 3, 2008. Nobody told her to write these articles but she discussed the information she obtained and the articles she wrote with her editors. Dr. Graham and his family read each of these articles and continued to be shocked, mad and dismayed and wondering if and when these articles would stop. After reading the November 30 article, Dr. Graham was depressed and felt that the newspaper was making the point that he was negligent and the jury was wrong to have exonerated him. The article made it sound as if the outcome of the trial would have been different had the jury heard from his other patients, that he should not have been given licence to practice in British Columbia and that he should not have been working as doctor. No one from the Star Phoenix contacted him to speak to him about the article, to ask him about the verdict or to get his view on an appeal. Dr. Graham was particularly upset and appalled after reading the December article as this article was full of untruths. Still, no one from the newspaper tried to contact him to get his comment. [32] On December 3, Dr. Graham’s children prepared letter to the Star Phoenix expressing their concerns and providing some rebuttal as to what was being written about their father. The Star Phoenix published this letter in the editorial section of the paper on December 14, 2007. [33] Over the next number of months, Dr. Graham’s children noticed change in their father. He was not as happy or as talkative as he had been before. He stopped doing things with them and became preoccupied with these articles. The articles bothered him for days and weeks at time. Dr. Graham, by his own admission, was depressed, not eating properly, unable to concentrate and had problems sleeping. He never sent letter or press release to the Star Phoenix as he did not think it was an appropriate thing to do. Over time, the effects lessened but he continued to have problems concentrating and sleeping. [34] Eventually Dr. Graham decided to bring lawsuit against the Star Phoenix to get back some of the vindication that was lost as result of Ms. Purdy’s articles. On November 18, 2009, counsel for Dr. Graham gave notice to Chris Purdy, her editors and publisher at the Star Phoenix and Canwest Publishing Inc., the then owners of the Star Phoenix, of their intention to bring an action for defamation as required by s. 15 of The Libel and Slander Act, RSS 1978, L-14. On November 24, 2009 Dr. Graham filed Statement of Claim in the Saskatchewan Court of Queen’s Bench alleging that the defendants had published series of articles containing defamatory comments about him in the Star Phoenix and on websites owned and operated by the Star Phoenix and Canwest Publishing Inc., between November 24, 2007 and January 3, 2008. [35] The defendants filed Statement of Defence on June 7, 2010 denying Dr. Graham’s allegations. The parties were not able to resolve the claim at mediation or pre-trial settlement conference and eventually the claim was set down for trial. [36] Sometime between the date Dr. Graham’s claim was filed and the commencement of the trial, Canwest Publishing Inc. experienced financial difficulties and eventually its assets, including the Star Phoenix, were purchased by Postmedia Network Inc. [37] The issues in this case are as follows: (a) Should the Statement of Claim be amended to add Postmedia Network Inc. as defendant? (b) Are the defendants, or any of them, liable in defamation to Dr. Graham? (c) What damages, if any, is Dr. Graham entitled to? (d) Is Dr. Graham entitled to an injunction requiring the defendants to remove certain content from websites under their control? (a) Should the Statement of Claim be amended to add Postmedia Network Inc. as defendant? [38] Postmedia Network Inc. purchased Canwest Publishing Inc. after their claim was filed but before the trial in this matter commenced and are the current owners of the Star Phoenix newspaper and its websites. Pursuant to Rules 3-72 and 3‑84 of The Queen’s Bench Rules, counsel for Dr. Graham asks me to exercise my discretion and allow the Statement of Claim to be amended to add Postmedia Network Inc. as defendant. In their view, there is no prejudice to Postmedia Network Inc. if they are added as defendant and in effect, while not formally named as defendant to this point in time, have been defending this claim since purchasing Canwest Publishing Inc. and/or its assets. [39] The defendants oppose this request on the basis that the two-year limitation period set forth in The Limitations Act, SS 2004, L-16.1, in force at the time of the alleged defamation has expired, that there is no evidentiary basis upon which could conclude that no party will suffer actual prejudice as result of the requested amendment and, lastly, that there is no explanation for Dr. Graham’s delay in seeking this amendment until after the conclusion of the evidence in the trial. [40] Rules 3-72, 3-78 and 3-84 are relevant to this issue and specifically: 3-72(1) party may amend the party’s pleading, including an amendment to add, remove, substitute or correct the name of party, as follows: (c) after statement of defence is filed: (i) by agreement of the parties filed with the Court; or (ii) with the Court’s prior permission, in any manner and on any terms that the Court considers just. (3) Parties shall make all amendments to their pleadings that are necessary to determine the real questions in issue between the parties. (8) Unless the Court orders otherwise, if pleading is amended at trial or hearing, the amended pleading does not need to be served and filed. (2) Persons may be joined as defendants or respondents if: (a) remedy is claimed against them, whether jointly or severally or in the alternative, arising out of the same transaction, occurrence or series of transactions or occurrences; (b) common question of law or fact may arise in the proceeding; (c) there is doubt as to the person or persons from whom the plaintiff, petitioner or originating applicant is entitled to remedy; (d) damage or loss has been caused to the same plaintiff, petitioner or originating applicant by more than one person, whether or not: (i) there is any factual connection between the several claims apart from the involvement of the plaintiff, petitioner or originating applicant; and (ii) there is doubt as to the respective amounts for which each may be liable; or (e) their presence in the proceeding may promote the convenient administration of justice. 3-84(1) At any stage of the action, the Court may order that any person be added as party if: (a) that person ought to have been joined as party; or (b) the person’s presence as party is necessary to enable the Court to adjudicate effectively and completely on the issues in the action. (2) At any stage of the action, the Court may grant leave to add, delete or substitute party, or to correct the name of party, and that leave shall be given, on any terms that the Court considers just, unless prejudice will result that cannot be compensated for by costs or an adjournment. [41] In this case, at the time the articles complained of were written, Canwest Publishing Inc. owned the Star Phoenix, the newspaper that employed Chris Purdy, Rod Nickel, Steven Gibb, Cameron Hutchinson and Dale Brin. According to material on the court file, on January 8, 2010 the Ontario Superior Court of Justice made an order pursuant to the Companies’ Creditors Arrangement Act, RSC 1985, C-36, in the matter of plan of compromise or arrangement of Canwest Publishing Inc. and other related companies. Sometime thereafter, but prior to the trial commencing, Postmedia Network Inc. purchased Canwest Publishing Inc. and/or its assets including the Star Phoenix. The evidence does not disclose the specific date this occurred. However, on the court file is statement as to documents of the defendants dated November 22, 2012 wherein defendants’ counsel identifies as being solicitors for Chris Purdy, Rod Nickel, Steven Gibb, Cameron Hutchinson, Dale Brin and Postmedia Network Inc., successor to Canwest Publishing Inc. There is also an affidavit of Rob McLaughlin filed on the court file sworn November 23, 2012 in which he states that he is the editor of the Star Phoenix and that Postmedia Network Inc. is the owner of the Star Phoenix newspaper. Finally, there is letter on the court file dated November 25, 2014 from defendants’ counsel requesting permission from the Court to dispense with the appearance of all the defendants at the December 2014 pre-trial conference. The reasons for this request included the following: (1) The defendants are all insured by the (formerly) Canwest Publishing and (now) Postmedia Network Inc. insurer, Hiscox Insurance, and thus have no personal financial exposure to the plaintiff; (3) None of the defendants is now employed by Postmedia Network Inc., owner of the Star Phoenix Newspaper, at that newspaper; and (4) Only the examination for discovery of the defendant Purdy was an “in-depth” discovery and there was understandably no examination of the proper officer of Postmedia Network Inc. [42] Despite this, Dr. Graham’s counsel neglected to make application to add or substitute Postmedia Network Inc. as defendant prior to the trial commencing, at the conclusion of the plaintiff’s case or at the end of the trial. In closing argument it was agreed that the parties would submit further written submissions on Dr. Graham’s request for an injunction requiring the defendants to remove certain articles from websites under their control if these articles were found to be defamatory. Unfortunately neglected to provide the parties with appropriate direction for submission of any further argument at the end of closing submissions. [43] On October 30, 2015 received correspondence from Dr. Graham’s counsel advising that he was writing on behalf of both counsel and requesting direction as to whether the parties may submit additional written material on two questions: (i) Whether the Statement of Claim should be amended to substitute Postmedia Network Inc. (the current proprietor of the Star Phoenix) for the defendant Canwest Publishing Inc. (former proprietor of the Star Phoenix); and (ii) Whether the plaintiff, if successful in establishing the defendants are liable in defamation, are entitled to an injunction requiring the defendants to remove certain content from websites under their control. [44] On the basis of the request of the parties in closing argument and their mutual desire to provide written submissions to the Court on the aforementioned two questions, instructed the Local Registrar to contact both counsel, advise them that would receive written submissions on these points and gave them deadline by which these submissions should be filed. [45] Both counsel filed written submissions. In the defendants’ written submission, counsel reiterated that these two outstanding issues are being raised with his agreement. [46] I am satisfied that Postmedia Network Inc. was the successor to Canwest Publishing Inc. and at the time of trial, was the owner of the Star Phoenix newspaper. I am also satisfied that Postmedia Network Inc. was aware of the existence of Dr. Graham’s claim including knowledge of the matters in issue. Counsel that had been representing Canwest Publishing Inc. and the other defendants before Postmedia Network Inc. purchased the Star Phoenix continued to represent the defendants after the purchase. In documents filed with the Court, counsel began identifying that he was now representing Postmedia Network Inc. as successor to Canwest Publishing Inc. Counsel ran the trial and must have been receiving some instruction from Postmedia Network Inc. as to how to proceed. [47] Rule 3-84(2) allows the Court to grant leave to add or substitute party at any stage of the action unless prejudice will result that cannot be compensated for. It is clear that trial judge has the discretion to add parties to an action however that discretion should not be exercised when it works an injustice to one of the parties. See Bradford Smith (1989), 1989 CanLII 4442 (SK CA), 74 Sask 193 (CA). While this rule gives the judge the power to add or substitute party, the criteria to be applied by the Court in deciding whether party ought to be joined as defendant is set out in Rule 3-78(2). See Lindsay Lindsay (1981), 1981 CanLII 2318 (SK QB), 15 Sask 29 (QB) at para 4; Scharnagl (Litigation Guardian of) Tomilin, 2005 SKCA 121 (CanLII) at para 18, 269 Sask 259. [48] Here, there is nothing that leads me to believe that Postmedia Network Inc. would suffer prejudice or an injustice if they were added as a defendant at this time. They purchased Canwest Publishing Inc. and/or its assets at least three years prior to trial and they are represented by the same lawyer that represented Canwest Publishing Inc. and the rest of the defendants. Both companies are insured by Hiscox Insurance and it appears that the insurer attended the pre-trial settlement conference on behalf of both companies. Counsel for the defendants admitted in correspondence that understandably no examination of the proper officer of Postmedia Network Inc. occurred as the more important discovery was of Chris Purdy. Postmedia Network Inc. is not being taken by surprise in the action and am not convinced that the case, from the defendants’ perspective, would have been handled differently had Postmedia Network Inc. been added earlier in the action. The evidence remains the evidence; it did not change, become stale or lost simply because Postmedia Network Inc. purchased Canwest Publishing Inc. and/or its assets. [49] The presence of Postmedia Network Inc. as defendant will ultimately promote the convenient administration of justice as it will enable the Court to determine the real questions in issue between the parties and effectively and completely adjudicate on all the issues in the action. Moreover, given that the Court has no evidence as to the specific terms upon which Postmedia Network Inc. purchased Canwest Publishing Inc. and/or its assets, there may be some doubt as to which entity Dr. Graham is entitled to remedy against if he is successful in his claim. For these reasons, Postmedia Network Inc. should be added as a defendant in this action. [50] I am not convinced that adding Postmedia Network Inc. as a defendant deprives them of a defence under s. 5 of The Limitations Act. Section states: Unless otherwise provided in this Act, no proceedings shall be commenced with respect to claim after two years from the day on which the claim is discovered. [51] The articles complained of were published between November 24, 2007 and January 3, 2008, and it would appear that the limitation period expired some time ago. But in cases where it is alleged defamatory material was posted on an internet website, as in this case, “publication” takes place wherever and whenever third party downloads or views the impugned material from the website. See Elfarnawani International Olympic Committee, 2011 ONSC 6784 (CanLII) at para 31. Consequently, the limitation period begins to run each and every time defamatory content on the internet is downloaded and viewed. This was the conclusion reached by the British Columbia Court of Appeal in Carter B.C. Federation of Foster Parents Association, 2005 BCCA 398 (CanLII) at para 20, 257 DLR (4th) 133. [52] It is not necessary for plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of some third party. If, on the facts proved, it can reasonably be inferred that the words were brought to the knowledge of some third party, prima facie case is established. See Gaskin Retail Credit Co., 1965 CanLII (SCC), [1965] [53] In Bernstein Poon, 2015 ONSC 155 (CanLII), although it was proven that the defamatory material was posted on the defendant’s website for at least one to two years prior to being removed, there was no direct evidence that anyone except the defendant and his legal representatives viewed the material. In concluding that there was more than ample evidence to support the drawing of an inference that the material on the website was viewed by third parties, Mew J. held that “[t]o find otherwise would be to ignore the realities of twenty-first century communication…”. [54] The defendants in the present case acknowledged that the articles in question remain on websites controlled by the Star Phoenix, Canwest Publishing Inc. and/or Postmedia Network Inc. It was part and parcel of their closing argument that to grant an injunction that the defamatory material be removed from their websites would be akin to erasing history. That being so, it is reasonable conclusion that anyone with search engine could have accessed that material within the last two years and as result the limitation period would not have expired. [55] Even if am wrong in this reasoning, s. 20 of The Limitations Act allows the Court to add party even after limitation period has expired. This section states: 20 Notwithstanding the expiry of limitation period after the commencement of proceeding, judge may allow an amendment to the pleadings that asserts new claim or adds or substitutes parties if: (a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (b) the judge is satisfied that no party will suffer actual prejudice as result of the amendment. [56] If both of the requirements set forth in the section are found to exist, the Court has an unfettered discretion to grant the application, however such discretion must be exercised judicially. See Stockbrugger Estate Wolfe Estate, 1987 CanLII 4901 (SK CA), [1987] WWR 759 (Sask CA). [57] The claim against Postmedia Network Inc. arises out of the same transactions or occurrences as the original claim against the defendants and for the reasons aforementioned, am satisfied that neither Dr. Graham, the other defendants nor Postmedia Network Inc. will suffer actual prejudice as result of adding Postmedia Network Inc. as defendant. Dr. Graham or his counsel gave no reason why they did not seek to amend their claim earlier, but as stated in Callihoo Lamoureux, 2001 SKQB 392 (CanLII), 211 Sask 36, even if there is negligence that is not necessarily fatal to the application. As result, would exercise my discretion and grant leave to add Postmedia Network Inc. as defendant in this case. (b) Are the defendants, or any of them, liable in defamation to Dr. Graham? [58] Dr. Graham takes issue with seven articles written by Chris Purdy, the Star Phoenix reporter tasked with covering the Baert trial. The dates of these articles were November 24, 28, 29 (two articles), 30, December 1, 2007 and January 3, 2008. He alleges particular defamatory meanings to the words in each of these articles and states that the articles as whole convey defamatory impression of him. He accuses the defendants of being actuated by express malice in the publication of these articles. [59] The defendants argue that the words complained of in the different articles are not capable of bearing the defamatory meanings, either at all or to the extent alleged by Dr. Graham. They admit that five of the articles do contain some defamatory comments or meaning. They raise the defence of privilege set forth in s. 11 of The Libel and Slander Act and the defence of responsible communication in relation to some of the articles and deny that their predominant purpose in publishing the articles was to harm Dr. Graham’s reputation or for any other malicious reason. [60] Defamation occurs when words are published to third person that contain an imputation which tends to lower the plaintiff in the estimation of right-thinking members of society generally or to expose him to hatred, contempt or ridicule. To be actionable, the words must be reasonably understood by others in defamatory sense. Words may be defamatory in their natural and ordinary meaning, they may carry an implied meaning (the true innuendo), and/or an extended meaning (the false innuendo). Unless the literal meaning is plain and obvious, the plaintiff must plead what he alleges the words were intended to mean. See Laufer Bucklaschuk (1999), 1999 CanLII 5073 (MB CA), 145 Man (2d) (CA) at para 23. [61] The basic principles of the law of defamation were succinctly stated by McLachlin C.J. in Grant Torstar Corp., 2009 SCC 61 (CanLII), [2009] SCR 640 [Grant]. There she said: 28 plaintiff in defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, “Balancing Freedom of Expression and Protection of Reputation Under Canada’s Charter of Rights and Freedoms”, in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. 29 If the plaintiff proves the required elements, the onus then shifts to the defendant to advance defence in order to escape liability. [62] In this case, the parties agree that the words complained of referred to Dr. Graham and that the words were published. Where they disagree is whether some of the words or articles were defamatory and whether they were defamatory to the extent that Dr. Graham says they were. [63] The role of the trial judge in determining whether or not words are defamatory was described by Hinkson J.A. (as he then was) in Lawson Baines, 2012 BCCA 117 (CanLII) at paras 26 and 27, [2012] WWR 429 [Lawson]: 26 The first task of judge in defamation case is to answer the “threshold question” of “whether the words cited are reasonably capable of defamatory meaning”: Laufer v. Bucklaschuk (1999), 1999 CanLII 5073 (MB CA), [2000] W.W.R. 462 at 470-471 (Man. C.A.). The judge, if sitting alone, then plays second role; as finder of fact, in determining whether the words do, in fact, bear that defamatory meaning. 27 In executing the first role, the question is whether the words complained of are reasonably capable of being understood in defamatory sense. In exercising this gatekeeper role, the judge must keep in mind that the question does not involve finding that the words are in fact defamatory, but concerns only what the words are capable of meaning. When performing this task, the judge must not stray from “common sense construction” of these words (as it was termed in Makow v. Winnipeg Sun, 2003 MBQB 56 (CanLII), [2003] 11 W.W.R. 166, affirmed 2004 MBCA 41 (CanLII)) and seize upon one marginal to that construction. [64] In Botiuk Toronto Free Press Publications Ltd., 1995 CanLII 60 (SCC), [1995] SCR [Botiuk], Cory J. said: 62 For the purposes of these reasons, it is sufficient to observe that publication which tends to lower person in the estimation of right-thinking members of society, or to expose person to hatred, contempt or ridicule, is defamatory and will attract liability. See Cherneskey v. Armadale Publishers Ltd., 1978 CanLII 20 (SCC), [1979] S.C.R. 1067, at p. 1079. What is defamatory may be determined from the ordinary meaning of the published words themselves or from the surrounding circumstances. In The Law of Defamation in Canada (2nd ed. 1994), R. E. Brown stated the following at p. 1-15: [A publication] may be defamatory in its plain and ordinary meaning or by virtue of extrinsic facts or circumstances, known to the listener or reader, which give it defamatory meaning by way of innuendo different from that in which it ordinarily would be understood. In determining its meaning, the court may take into consideration all the circumstances of the case, including any reasonable implications the words may bear, the context in which the words are used, the audience to whom they were published and the manner in which they were presented. [65] As decide whether the words and/or articles in question were defamatory, both parties urge me to consider the context in which the words were published and the context of the articles. Brown on Defamation, loose-leaf (2012-Rel 4) 2d ed, vol (Toronto: Carswell, 1999), stresses that context and circumstances are crucial in determining the defamatory sense of words. At pages 5-82 to 5-83: The defamatory communications must be viewed contextually. In determining whether they are defamatory, the words “must be considered in the context of the matter complained of as whole.” An alleged defamatory statement cannot be considered apart from the circumstances in which it was made. word having different shades of meaning may derive color and significance from the nature of the act to which it is applied. “What is said and what is done always has its proper relation to time, place, conditions, and circumstances.” Therefore, in determining the defamatory sense of language, “reference must be had, not only to the words or expressions themselves, but also to the circumstances under which they were used.” This is particularly true where an innuendo has been pled. [66] Besides arguing that the words were not defamatory, the defendants rely on the defence of privilege afforded newspapers under s. 11 of The Libel and Slander Act and the defence of responsible communication. Section 11 of The Libel and Slander Act reads as follows: 11(1) fair and accurate report in newspaper without comment, of proceedings publicly heard before court of justice, if published contemporaneously with those proceedings, shall be absolutely privileged unless the defendant has refused or neglected to insert in the newspaper in which the report complained of appeared reasonable letter or statement of explanation or contradiction by or on behalf of the plaintiff. (2) Nothing in this section authorizes the publication of blasphemous, seditious or indecent matter. [67] The defence of responsible communication is relatively new defence in Canadian law. Formally accepted by the Supreme Court of Canada in Grant, McLachlin C.J. described the elements of the new defence as follows: 126 The defence of public interest responsible communication is assessed with reference to the broad thrust of the publication in question. It will apply where: A. The publication is on matter of public interest, and B. The publisher was diligent in trying to verify the allegation, having regard to: (a) the seriousness of the allegation; (b) the public importance of the matter; (c) the urgency of the matter; (d) the status and reliability of the source; (e) whether the plaintiff’s side of the story was sought and accurately reported; (f) whether the inclusion of the defamatory statement was justifiable; (g) whether the defamatory statement's public interest lay in the fact that it was made rather than its truth (“reportage”); and (h) any other relevant circumstances. [68] With this background in mind and since each publication is separate cause of action for which an action lies (Lambert Roberts Drug Stores Ltd., 1933 CanLII 289 (MB CA), [1933] DLR 193 (Man CA), at para [Lambert]), will address each of the articles Dr. Graham complains of separately. (i) November 24, 2007 Article [69] This article appeared both in the Star Phoenix newspaper and on internet sites controlled by the newspaper. The article reads as follows: Final arguments in surgery suit heard by court The gynecologist who botched routine tubal ligation operation on Lloydminster mother, leaving her quadriplegic with brain damage, clearly failed to provide her with standard level of care, jury has heard. On Friday, lawyers for Lisa Baert began their closing arguments in the two-month civil trial in Saskatoon’s Court of Queen’s Bench. Because the lawyers need more time Monday to complete their case, Justice Grant Currie told the jury members all women they won’t need to bring their suitcases until Tuesday, when they will be sequestered for their deliberations. “It’s clear this case is about young family whose lives were unimaginably changed,” said lawyer Sandra Weber. Lisa Baert was 21 when she went to the Lloydminster hospital in July 1999 for what is considered by many to be safe, simple sterilization procedure, said Weber. But her bowel was unknowingly punctured during the laparoscopic operation, allowing toxins to leak into her body. She was discharged from hospital but two days later was rushed back suffering from septic shock. Her hands and feet had to be amputated. And she also suffered major brain damage during cardiac arrests. She now lives in Saskatoon’s Parkridge Centre. Baert, her husband Mark and their two young sons are suing Dr. Kenneth Graham for more than $10 million for negligence. The Lloydminster hospital and several nurses originally named in the suit previously settled out of court. “Dr. Graham failed Lisa Baert in number of ways,” said Weber. She said Graham did not get Baert’s informed consent for the surgery. When he met her in his office weeks before the operation, he spent only three minutes discussing the operation. Mark testified when his wife returned home, and he asked her if the doctor had discussed risks of the upcoming surgery, she told him: “I don’t believe he told me of any risks.” Weber also reminded the jury one of Graham’s other patients, who had tubal ligation that same day, testified she was unaware the bowel could be nicked during the surgery. Graham testified it was his routine to briefly mention the risk of bowel perforation. But he would not tell patients the consequences of such an injury include septic shock or death, because the event is so rare. “Even if risk is rare, if the potential consequences are serious, that must be disclosed,” Weber said. She said Graham further failed Baert by proceeding with the surgery, after another doctor diagnosed her with postpartum depression and prescribed her anti-depressants. Graham either didn’t see the update in her chart, said Weber, or he ignored the vital piece of information. She said Graham also admitted he was “crunched for time,” with three other surgeries scheduled the same morning as Baert’s operation. He obviously used “improper technique,” inserting the needle at wrong angle or pushing it too deep into the abdomen, said Weber. Graham was alerted to possible problem when the surgical equipment gave high pressure reading, an indication the needle had met an obstruction, such as the bowel, Weber said. But he completed the surgery and didn’t tell other staff or Baert of the problem so they could watch for symptoms. “The doctor’s responsibility doesn’t end when he puts in the last suture,” Weber said. “Dr. Graham had the missing piece of the puzzle that he failed to communicate, and that started the whole process.” Baert was discharged from hospital and given an instruction sheet from nurse about how she should not take prescription drugs and should call the hospital or her doctor if she experienced more pain. Baert and concerned neighbour allegedly called the hospital three times during the next two days, concerned about her increasing pain. They talked to unknown nurses who said Baert should wait out the pain and gave permission for her to take the neighbour’s prescription pain killers. Graham’s defence lawyers have argued the nurses obviously gave bad advice over the phone, and Baert should have followed the instructions by returning to the hospital. Graham’s defence suggests the hospital and Baert carry about 75 per cent of the responsibility for what happened. Weber said Baert did nothing wrong, and Graham is to blame for 80 per cent of the incident. The hospital is responsible for the remaining 20 per cent. “Dr. Graham’s negligence is by far the biggest factor,” she said. [Italics are mine] [70] Dr. Graham argues that the italicized portions of the article are false, malicious and defamatory and were understood to mean that he botched routine tubal ligation operation on Lisa Baert causing her to become quadriplegic with brain damage. [71] Defendants’ counsel says that this article is Ms. Purdy reporting on the submissions of Ms. Baert’s counsel to the jury and that the natural and ordinary meaning of the words complained of is non-defamatory. Alternatively they rely on the privilege accorded to newspapers reporting on court proceedings pursuant to s. 11 of The Libel and Slander Act and the defence of responsible communication. [72] Looking at the words specifically complained of by Dr. Graham in the context of the article as whole, am not satisfied that these words are reasonably capable of defamatory meaning. An ordinary person reading these words would understand that these are the plaintiff’s lawyer’s arguments at the end of lengthy trial. The impugned portions state as much when they end with “a jury has heard” and “said Weber”. Early in the article it states that lawyers for Ms. Baert began their closing arguments in trial and the different paragraphs are littered with references that Ms. Weber said this or she said that. An ordinary person reading this would be mindful that this trial is not finished, that no determination has yet been made as to whether Dr. Graham has done anything wrong and that what is being said here are arguments jury is going to have to consider. [73] Even if am wrong in this conclusion, the words complained of are not actionable by reason of the privilege afforded the defendants under s. 11 of The Libel and Slander Act. The article was fair and accurate contemporaneous reporting of the closing submissions made by the Baerts’ lawyer to the jury. For both these reasons, the allegation that this November 24, 2007 article is defamatory is dismissed. (ii) November 28, 2007 Article [74] This article was only published on the Star Phoenix internet sites. It read as follows: Gynecologist not negligent in tubal ligation lawsuit The gynecologist found not negligent Wednesday in the case of Lloydminster mother left with devastating injuries after routine tubal ligation recently settled second lawsuit with another patient who nearly died following the same surgery. Dr. Kenneth Graham settled the second suit out of court for an undisclosed sum earlier this month, said lawyer John Jordan of Nanaimo, B.C. Jordan said his client, Gloria Cooke, was referred to Graham for the laparoscopic tubal ligation at Dawson Creek and District Hospital in 2002. He mistakenly punctured her bowel twice during the surgery. “She almost died and struggled to hang on for month,” said Jordan. On Wednesday, after nine weeks of trial, Saskatoon jury determined Graham was not negligent in his care of Lisa Baert when he punctured her bowel during tubal ligation at the Lloydminster hospital in 1999. Baert went into septic shock and doctors had to amputate her hands and feet. She also suffered severe brain damage. Baert and her family were claiming more than $10 million in damages against Graham. Prior to trial, they reached an undisclosed settlement with the Lloydminster hospital and some nurses. One of the six jurors, her bottom lip quivering as the verdict was read, wiped tears from her face and glanced at Baert’s husband, Mark, and his three sons sitting in the courtroom. The jurors did not have to be unanimous, but five of the six had to agree on each question posed in six-page verdict sheet in order to reach their decision. Baert, confined to wheelchair and living at the Parkridge Centre long-term care home, was unable to make it to the courthouse for the verdict. And her husband did not talk to reporters when he left the building. Graham, who no longer works as doctor, also wasn’t at the courthouse. His lawyer, Christine Glazer, said he was busy with personal matters. She said the trial was difficult for her client and obviously the jury. “I realize how difficult it would have been for the jury to reach the conclusion that it did,” said Glazer. “But the jury did what it had to do, and that was set aside its emotion and look at the case objectively.” Baert’s lawyers planned to call about 10 other patients during the trial, some like Cooke suffered complications during surgeries conducted by Graham. But Court of Queen’s Bench Justice Grant Currie ruled the patients couldn’t testify because their stories weren’t relevant to Baert’s case and would prejudice the jury. Graham said Baert was partially responsible for her injuries because she did not return to the hospital when she experienced increasing pain at home. His lawyers also argued bowel perforations are recognized but rare risk of tubal ligations. And instruments inserted into the abdomen mistakenly puncture the bowel in about four of every 10,000 surgeries. Jordan, Cooke’s lawyer, said the risks increase if woman has had prior abdominal surgery, which was the case with Cooke. The 41-year-old mother of three argued she told Graham about her prior surgery, although Graham claimed she did not, said Jordan. Graham, granted licence by the B.C. College of Physicians and Surgeons despite Baert’s injuries in Saskatchewan, went ahead with Cooke’s tubal ligation on Oct. 31, 2002. Graham had to cut through lesions and adhesions formed during Cooke’s prior surgery. When Graham saw the abnormalities, he should have stopped the surgery, said Jordan. “He didn’t have the skill to do the dissection. It’s whole other level of surgery, not what obstetricians and gynecologists should be doing.” But he continued and the operation took 45 minutes, Jordan said, four times as long as Baert’s surgery and what Graham testified was normal. Jordan said Graham kept Cooke in hospital overnight to monitor her condition but she was released the next day. She soon returned to the hospital in pain but Graham diagnosed her with gastrointestinal problem and sent her home. She returned to hospital second time, and another doctor discovered she was suffering from septic shock. She was sent to hospitals in Grand Prairie and Edmonton for life-saving surgeries. Doctors determined two puncture holes in her bowel occurred during the tubal ligation, said Jordan. He said Cooke is still in chronic pain and has an incisional hernia in her abdomen. She has returned to work as medical office assistant. But because she no longer has stomach muscles, she needs to wear girdle each day to hold herself in. Graham voluntarily stopped doing laparoscopic operations after Cooke’s surgery. But four months later, Dawson Creek media reported 35-year-old Dana McLellan had to be air-lifted to Vancouver after Graham cut her bladder during hysterectomy. The hospital, the Northern Health Authority and the B.C. College of Physicians and Surgeons reviewed complaints against Graham but his licence was not revoked. College spokesperson Susan Prins said Graham voluntarily agreed to have his skills assessed at the University of Saskatchewan. And although he passed, he did not return to work. Graham, 55, testified in the Baert case that he was unable to work after heart attack in 2003. He underwent quintuple bypass surgery, then developed depressive illness. He now lives in St. Albert, just north of Edmonton. [Italics are mine] [75] It was Dr. Graham’s position that the italicized portions of this article contained false, malicious and defamatory words that were understood to mean: (a) That he negligently performed surgery on Lisa Baert, thereby causing her to suffer devastating injuries and the jury’s verdict exonerating him of negligence was wrong and should be given no credibility; (b) He negligently performed surgery on Gloria Cooke, thereby nearly causing her death; (c) He negligently failed to address post-surgery complications experienced by Gloria Cooke, thereby nearly causing her death; (d) His negligent treatment of Gloria Cooke caused her to suffer septic shock, permanent chronic pain, an incisional hernia in her abdomen and the permanent loss of her stomach muscles; and (e) He negligently performed surgery on Dana McLellan, placing her health and life in jeopardy. [76] Counsel for the defendants agreed that the italicized portions of this article were defamatory insofar as they implied that Dr. Graham was negligent in his treatment of Gloria Cooke and Dana McLellan. However he denied that the natural and ordinary meaning of the words complained of were defamatory in any other sense as suggested by Dr. Graham. He acknowledged that the statutory defence of privilege under s. 11 of The Libel and Slander Act was not available as this article was not contemporaneous reporting of court proceedings. He also advised that he was not advancing the defence of responsible communication as the evidence did not support it in this instance. [77] The defendants admit that the italicized words are defamatory and agree. The natural and ordinary meaning of these words is reasonably capable of defamatory meaning. reasonable person of ordinary intelligence would believe that, at the very least, these words meant that Dr. Graham negligently treated Gloria Cooke and Dana McLellan. However, am also satisfied that reasonable person would conclude that these words are reasonably capable of being given the extended meaning ascribed to them by Dr. Graham. [78] The byline references that Dr. Graham was not negligent in the lawsuit but the context of the article as whole and the specific words complained of make it appear that the jury was wrong to find him not at fault for Ms. Baert’s injuries. The article does not report solely on the jury’s verdict but includes serious allegations made by two of Dr. Graham’s former patients that he was negligent in his treatment of them. By including discussion of these two patients, and in the case of Ms. Cooke detailed discussion, of their complaints, leads to the inevitable conclusion that Dr. Graham was negligent in their cases and ergo must have been negligent in the Baert case. The only reason he was found not liable was because the jury was not allowed to hear about their cases. [79] The words themselves do not simply point to Dr. Graham being negligent in his treatment of Ms. Cooke and Ms. McLellan but go farther that he caused Ms. Cooke specific injury and nearly death and that he put Ms. McLellan’s life in jeopardy. The words Ms. Purdy used to describe Ms. Cooke’s treatment, or mistreatment, were “she almost died and struggled to hang on for month”, that she was sent for “life-saving surgeries”, she is “still in chronic pain”, has “an incisional hernia in her abdomen”, and “no longer has stomach muscles”. The meaning of these words is clearly more than just that Dr. Graham was negligent in his treatment of her. [80] There is only one paragraph in the article speaking about Ms. McLellan but by using the words “air-lifted to Vancouver” the meaning is that the cut to her bladder was so serious that she needed to be flown to bigger hospital to be treated. Again, the meaning of these words is more than that Dr. Graham was simply negligent in his treatment of Ms. McLellan. [81] The evidence satisfies me that the natural and ordinary meaning of the words complained of and the implied meaning of these words in the context of the article as whole, are that Dr. Graham negligently performed surgery on Ms. Baert causing her devastating injuries and the jury’s verdict exonerating him was wrong, that he negligently performed surgery on Gloria Cooke and negligently failed to address her post-surgery complications thereby causing her specific injuries and nearly causing her death and that he negligently performed surgery on Dana McLellan and placed her life in jeopardy and this is defamatory. (iii) The First November 29, 2007 Article [82] Two separate articles written by Ms. Purdy appeared in the Star Phoenix newspaper and on their websites on November 29, 2007. The first of these articles reads as follows: Gynecologist not negligent Punctured bowel led to brain damage The gynecologist found not negligent Wednesday in the case of Lloydminster mother left with devastating injuries after routine tubal ligation recently settled second lawsuit with another patient who nearly died following the same surgery. Dr. Kenneth Graham settled the second suit out of court for an undisclosed sum earlier this month, said lawyer John Jordan of Nanaimo, B.C. Jordan said his client, Gloria Cooke, was referred to Graham for the laparoscopic tubal ligation at Dawson Creek and District Hospital in 2002. He mistakenly punctured her bowel twice during the surgery. “She almost died and struggled to hang on for month,” said Jordan. On Wednesday, after nine weeks of trial, Saskatoon jury determined Graham was not negligent in his care of Lisa Baert when he punctured her bowel during tubal ligation at the Lloydminster hospital in 1999. Baert went into septic shock and doctors had to amputate her hands and feet. She also suffered severe brain damage. Baert and her family were claiming more than $10 million in damages against Graham. Prior to trial, they reached an undisclosed settlement with the Lloydminster hospital and some nurses. One of the six jurors, her bottom lip quivering as the verdict was read, wiped tears from her face and glanced at Baert’s husband, Mark, and his three sons sitting in the courtroom. The jurors did not have to be unanimous, but five of the six had to agree on each question posed in six-page verdict sheet in order to reach their decision. Baert, confined to wheelchair and living at the Parkridge Centre long-term care home, was unable to make it to the courthouse for the verdict. And her husband did not talk to reporters when he left the building. Graham, who no longer works as doctor, also wasn’t at the courthouse. His lawyer, Christine Glazer, said he was busy with personal matters. Graham, who no longer works as doctor, also wasn’t at the courthouse. His lawyer, Christine Glazer, said he was busy with personal matters. She said the trial was difficult for her client and obviously the jury. realize how difficult it would have been for the jury to reach the conclusion that it did,” said Glazer. “But the jury did what it had to do, and that was set aside its emotion and look at the case objectively.” Baert’s lawyers planned to call about 10 other patients during the trial, some like Cooke suffered complications during surgeries conducted by Graham. But Court of Queen’s Bench Justice Grant Currie ruled the patients couldn’t testify because their stories weren’t relevant to Baert’s case and would prejudice the jury. Graham said Baert was partially responsible for her injuries because she did not return to the hospital when she experienced increasing pain at home. His lawyers also argued bowel perforations are recognized but rare risk of tubal ligations. And instruments inserted into the abdomen mistakenly puncture the bowel in about four of every 10,000 surgeries. Jordan, Cooke’s lawyer, said the risks increase if woman has had prior abdominal surgery, which was the case with Cooke. The 41-year-old mother of three argued she told Graham about her prior surgery, although Graham claimed she did not, said Jordan. Graham, granted licence by the B.C. College of Physicians and Surgeons despite Baert’s injuries in Saskatchewan, went ahead with Cooke’s tubal ligation on Oct. 31, 2002. Graham had to cut through lesions and adhesions formed during Cooke’s prior surgery. When Graham saw the abnormalities, he should have stopped the surgery, said Jordan. “He didn’t have the skill to do the dissection. It’s whole other level of surgery, not what obstetricians and gynecologists should be doing.” But he continued and the operation took 45 minutes, Jordan said, four times as long as Baert’s surgery and what Graham testified was normal. Jordan said Graham kept Cooke in hospital overnight to monitor her condition but she was released the next day. She soon returned to the hospital in pain but Graham diagnosed her with gastrointestinal problem and sent her home. She returned to hospital second time, and another doctor discovered she was suffering from septic shock. She was sent to hospitals in Grand Prairie and Edmonton for life-saving surgeries. Doctors determined two puncture holes in her bowel occurred during the tubal ligation, said Jordan. He said Cooke is still in chronic pain and has an incisional hernia in her abdomen. She has returned to work as medical office assistant. But because she no longer has stomach muscles, she needs to wear girdle each day to hold herself in. Graham voluntarily stopped doing laparoscopic operations after Cooke’s surgery. But four months later, Dawson Creek media reported 35-year-old Dana McLellan had to be air-lifted to Vancouver after Graham cut her bladder during hysterectomy. The hospital, the Northern Health Authority and the B.C. College of Physicians and Surgeons reviewed complaints against Graham but his licence was not revoked. College spokesperson Susan Prins said Graham voluntarily agreed to have his skills assessed at the University of Saskatchewan. And although he passed, he did not return to work. Graham, 55, testified in the Baert case that he was unable to work after heart attack in 2003. He underwent quintuple bypass surgery, then developed depressive illness. He now lives in St. Albert, just north of Edmonton. [Italics are mine] [83] This article is identical to the November 28, 2007 article written by Ms. Purdy that was published on the Star Phoenix websites. It appeared on the front page of the November 29, 2007 edition of the Star Phoenix and continued on page A8. The only difference between this article and the previous article is the byline. The byline that appeared on the front page attached to this article was “Gynecologist Not Negligent” and on page A8 attached to the continuation of the story was “Suit: jury not allowed to hear from other patients”. [84] The words in this article that Dr. Graham complains of are the same as the words he complained of in the November 28, 2007 article. His complaints about this article are the same as his complaints about the previous article for all the same reasons set forth previously. Given this article was identical to the previous article, both counsel’s arguments about this article were identical to their arguments on the previous article. [85] From my perspective it would be superfluous for me to reiterate my reasoning and comments from the previous article here and see no need to do so. Suffice it to say that my conclusion remains that the words Dr. Graham complains of are defamatory both on their natural meaning and on their implied meaning in the context of the article as whole. The fact that the byline in this article is somewhat different than in the November 28 article and this article appeared on the front page of the newspaper does not alter my reasoning or conclusions. (iv) The second November 29, 2007 Article [86] second separate article written by Ms. Purdy appeared on page A8 of the Star Phoenix newspaper on November 29, 2007 and on their websites. It read as follows: Routine surgery became health nightmare Lisa Baert was 21 when she went to the Lloydminster hospital on July 14, 1999, to have her “tubes tied.” Lisa Baert was 21 when she went to the Lloydminster hospital on July 14, 1999, to have her “tubes tied.” She and her husband Mark, financially strapped and already parents to two sons, had decided they didn’t want more children. And Mark didn’t want vasectomy. During the routine laparoscopic operation, Graham unknowingly punctured Baert’s bowel, and the two-millimetre hole allowed toxins to leak into her body. But the surgery was completed, clips were placed on her fallopian tubes, and she was stitched up and sent home. Two days later, an ambulance rushed her back to hospital suffering from septic shock. Her bowel was repaired but because of reduced blood flow and dead tissue, doctors had to amputate her hands at the wrist and her legs below the knees. She also suffered severe brain damage, due to cardiac arrests during surgery, leaving her with the mental capacity of child. Now 29, Baert lives in Saskatoon’s Parkridge Centre long-term care home, where staff help with daily tasks such as changing her diapers and putting on her prosthetic limbs. Baert and her family launched multimillion-dollar lawsuit in 2000 against Graham, the hospital and several nurses. The hospital and nurses settled out of court for an undisclosed sum shortly before the trial began in September, leaving Graham the lone defendant. Graham, who no longer practices as doctor, denied any negligence, claiming bowel perforations are recognized, although rare, risk of tubal ligation surgeries. And he said it was up to nurses to monitor Baert for symptoms of complications after the surgery. Graham also argued Baert was partially responsible for her injuries for not returning to the hospital when she experienced increasing pain at home following the surgery. When Baert was discharged from hospital, nurse gave her an instruction sheet stating she should call her doctor or return to the hospital if she experienced more pain. Baert and concerned neighbour allegedly called the hospital three times during the next two days, concerned about her increasing pain. They talked to unknown nurses who said Baert should wait out the pain and gave permission for her to take the neighbour’s prescription pain killers. Baert’s lawyers argued she did what any reasonable patient would have. They claimed Graham used improper technique during the surgery and should have known that he punctured her bowel when equipment in the operating room measured high pressure reading. They said Graham had duty to pass that information on to Baert and the nurses so they would more closely watch for symptoms of complications. They further argued Graham didn’t properly explain to Baert the risks of the surgery or the consequences of bowel puncture, and therefore he didn’t get her informed consent to operate. [Italics are mine] [87] Dr. Graham complains that the italicized words in this article were false, malicious and defamatory and were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to suffer septic shock; (b) He negligently performed surgery on Lisa Baert, thereby causing her to suffer cardiac arrests resulting in severe brain damage, leaving her with the mental capacity of child and requiring her to live in long-term care facility; (c) He negligently performed surgery on Lisa Baert, thereby causing her to suffer reduced blood flow and dead tissue, necessitating the amputation of her hands and her legs below the knees; (d) He deliberately and deceitfully did not advise the nurses or Lisa Baert that he had punctured her bowel during surgery, or alternatively, that he negligently failed to do so; and (e) He deliberately concealed from Lisa Baert the risks associated with tubal ligation surgery and therefore did not receive her informed consent to perform such surgery. [88] Counsel for the defendants acknowledged that the meaning of the italicized portions of the article was defamatory in that they meant that Dr. Graham was negligent in his treatment of Ms. Baert, but he denied that the words were defamatory in any other sense as suggested by Dr. Graham. He took specific issue that the words in question could be interpreted to mean that Dr. Graham caused certain things, was deliberately deceitful or deliberately concealed information. He encouraged me to consider the article as whole. He did not advance any other arguments. [89] The defendants admit that the plain meaning of the words complained of in this article are defamatory insofar as they mean that Dr. Graham was negligent in his treatment of Ms. Baert. accept that the plain meaning of these words is defamatory but the meaning goes farther than the defendants’ counsel suggests. [90] The article as whole says nothing about the verdict in the case, nor does it tie in any of the information to the judge’s instructions in the case, the jury’s deliberations or their ultimate verdict. Reading this article, person would have no reason to believe that Dr. Graham was found not negligent in the case. The words complained of in the first five paragraphs of the article outline the cause and the effect: Dr. Graham performed surgery on Ms. Baert, he punctured her bowel in the process, she developed sepsis that eventually led to other complications and as result of that she ended up living in care home. Thus the words are defamatory but the meaning of the words includes more than just that Dr. Graham was negligent; it includes the results of his negligence as well. [91] The last three paragraphs Dr. Graham complains about in the article are Ms. Baert’s lawyer’s comments about what Dr. Graham did wrong. The plain meaning of these words is that Dr. Graham was supposed to do some things and he did not, for example, he did not pass on information to the nurses or properly explain the risks of the surgery to Ms. Baert. Without presenting Dr. Graham’s lawyer’s arguments on these points or indicating that the jury vindicated him of these allegations, the words indicate he was negligent by not doing these things. am not however satisfied that these words were understood to mean that Dr. Graham deliberately did not do these things or that he was, in any way, deceitful. [92] Therefore, on the evidence, the defamatory meaning of the words complained of is that Dr. Graham negligently performed surgery on Ms. Baert causing her septic shock, amputation of her hands and feet, cardiac arrest, severe brain damage leaving her with the mental capacity of child and requiring her to live in long-term care facility and further, that he did not advise the nurses or Ms. Baert that he had punctured her bowel or that he negligently failed to do so and he did not properly advise Ms. Baert of the risks associated with the surgery and did not therefore receive her informed consent to the surgery. (v) November 30, 2007 Article [93] The following article appeared in the Star Phoenix newspaper and on its websites on November 30, 2007: Baert family mulls appeal of suit decision Lisa Baert may have the mental capacity of child, but she can still comprehend the loss of her multimillion-dollar malpractice lawsuit against her former gynecologist. Mark Baert said Thursday that when he told his wife of the jury’s decision and the judge’s dismissal of the suit, she was understandably upset. “It’s lot of hopes and dreams there being crushed,” said Mark. The couple and their two sons were claiming more than $10 million in damages against Dr. Kenneth Graham. Prior to trial, they reached an undisclosed settlement with the Lloydminster hospital and some nurses. Lisa, 29, sat in her wheelchair throughout most of the trial but was not in the courtroom for the decision on Wednesday. Graham unknowingly punctured her bowel, allowing toxins to leak into her body, during routine tubal ligation in July 1999. She was discharged from hospital but two days later was rushed back suffering from septic shock. Doctors had to amputate her hands and feet. She also suffered severe brain damage. After nine weeks of testimony in the civil trial, the six-member jury all women decided Graham had Lisa’s informed consent to perform the surgery and provided standard level of care both during and after the operation. Graham’s lawyers argued bowel perforations are rare but recognized risks of tubal ligations, and it was up to the nurses to watch for symptoms of complications after the surgery. Graham also claimed Lisa was partially at fault for not immediately returning to the hospital when she experienced increasing pain at home. Because Lisa was not mentally capable of testifying in the case, Mark told the jury Lisa and concerned neighbour called the hospital three times about her pain following the surgery. But nurses who answered the calls told them to wait out the pain and gave permission for Lisa to take the neighbour’s prescription pain killers. Graham, 55, recently settled another lawsuit in similar case involving woman from Dawson Creek, B.C. Gloria Cooke almost died after Graham twice punctured her bowel during tubal ligation in 2002. After several life-saving surgeries, she was left with chronic pain and has an incisional hernia in her abdomen. The jury in the Baert trial was not allowed to hear about Graham’s other patients. Mark said he’s glad Graham is no longer working as doctor. After heart attack in 2003, Graham underwent quintuple bypass and then developed depressive illness. Mark said he went public with Lisa’s injuries in 1999 to warn others about Graham. But the doctor moved to B.C. and was granted medical licence there. “I certainly wouldn’t wish harm upon him,” said Mark. “He’s human. He makes mistakes. understand that.” Mark said he’s not sure if his family will appeal the ruling. One of his lawyers, David Risling, said because the Baerts lost the suit, they will likely be on the hook for Graham’s legal fees. The majority of damages claimed in the lawsuit $8.7 million were ear-marked for future health-care costs to move Lisa into private group home. Mark, unable to comment on the amount of the settlement with the hospital, also couldn’t say whether the move is still possible. Lisa currently lives in Saskatoon’s Parkridge Centre, publicly funded and government-subsidized long-term care home. Staff help with daily tasks such as changing her diapers and putting on her prosthetic limbs. Lisa has some movement in her shoulders and elbows but is basically immobile. Her wheelchair has headrest because she can’t hold her head up for long without support. [Italics are mine] [94] It was Dr. Graham’s argument that the italicized words in this article were false, malicious and defamatory and were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to suffer devastating injuries; (b) The verdict of the jury exonerating him of negligence in his treatment of Lisa Baert was perverse; (c) He negligently performed surgery on Gloria Cooke, thereby nearly causing her death; (d) He negligently performed surgery on Gloria Cooke, thereby causing her to suffer permanent chronic pain and an incisional hernia in her abdomen; and (e) He is guilty of habitual negligence in his surgical practice and should not be permitted to carry on practice as surgeon because of the unacceptable risk he poses to the life and health of patients. [95] Dr. Graham also argued that in the alternative, these defamatory meanings were conveyed by way of legal innuendo by the combined effect of the November 24, 28, 29 and 30 articles. [96] The defendants agreed that to the extent that the italicized words in this article meant that Dr. Graham negligently performed surgeries on Lisa Baert and Gloria Cooke, they were defamatory. However once again, counsel took issue with any additional meanings attributed to the words by Dr. Graham or that in the context of the first four articles referenced, legal innuendo conveyed the meanings attributed to the words by Dr. Graham. Counsel did not make any other argument in relation to this article. [97] The meaning of the words complained of must be looked at in the context of the entire article. The article says that Dr. Graham unknowingly punctured Ms. Baert’s bowel allowing toxins to leak into her body. Two days later she was rushed back to the hospital with septic shock. Doctors had to amputate her hands and feet, she suffered severe brain damage, she has the mental capacity of child, she is in wheelchair and lives in long-term care home. Thus in my view, when Mark Baert said that he went public with Lisa’s injuries in 1999 to warn others about Graham, an ordinary person would conclude that he believed that people should know that Dr. Graham negligently performed surgery on his spouse and that she suffered devastating injuries as result thereof. [98] The words complained of relating to Ms. Cooke are that Dr. Graham twice punctured her bowel, she almost died, she had several life-saving surgeries, she has chronic pain and an incisional hernia in her abdomen, she sued Dr. Graham and he settled with her. reasonable person looking at these words would obviously say that Dr. Graham negligently performed surgery on her that nearly caused her death and resulted in her suffering permanent chronic pain and an incisional hernia in her abdomen. [99] In addition to the article speaking of Dr. Graham’s negligent surgery on Ms. Baert and the injuries she suffered as result of that, the article also speaks of Ms. Baert being upset to learn that the jury’s decision resulted in the dismissal of her lawsuit against Dr. Graham, that Dr. Graham was sued by Gloria Cooke in British Columbia in similar case and he settled with her. Looking at the words that “the jury in the Baert trial was not allowed to hear about Dr. Graham’s other patients” in the context of the article as whole, reasonable person would think that had the jury been allowed to hear Ms. Cooke and other of Dr. Graham’s patients, it would have been obvious to them that he was habitually negligent in his surgical practice and that the verdict exonerating him would have been different. [100] cannot however agree with Dr. Graham’s contention that the ordinary meaning of the impugned words or the legal innuendo meaning conveyed by the previous articles is that he should not be permitted to practice as surgeon because of the unacceptable risk he poses to the life and health of his patients. The words, even in the context of the article as whole and/or read in concert with the previous articles written by Ms. Purdy, do not lend themselves to this meaning. Dr. Graham, according to the article, stopped practicing as doctor in 2003 after suffering heart attack and later depression. This is point made in the November 28 article and both articles on November 29. These words do not connote the meaning that this man should be prohibited from being doctor going forward. reasonable man would glean that he has already ceased practicing medicine as result of his own medical issues and is not concern anymore. (vi) The December 1, 2007 Article [101] On December 1, 2007 an article written by Chris Purdy appeared on page A4 of the Star Phoenix and on the newspaper’s websites. The article read: Former patient wanted chance to confront doctor Dr. Kenneth Graham made surgical mistakes that led to complications with four other patients before the tubal ligation on Lloydminster mother Lisa Baert in 1999 left her quadriplegic with brain damage. Sharry Michels, 50, said the gynecologist accidentally clamped her femoral artery, nerve and vein during hysterectomy at the Lloydminster hospital in 1998. When she woke up in the recovery room, her right leg was cold and felt like it was asleep. She later learned of the complication and the possibility she might never regain feeling in her leg. “I was terrified,” Michels said Friday. Although her knee is still numb and has no reflex, her leg has recovered about 85 per cent of its normal functions. Michels said lawyer advised her against filing lawsuit, and she chose not to lay complaint about Graham with the College of Physicians and Surgeons of Saskatchewan. But after she learned of Baert’s devastating injuries, she regretted that decision. “There’s guilt thing,” said Michels. “Maybe if I’d said something earlier.” Graham unknowingly punctured Baert’s bowel, allowing toxins to leak into her body, during the routine tubal ligation in July 1999. The 21-year-old was discharged from hospital but two days later was rushed back suffering from septic shock. Doctors had to amputate her hands and feet. She also suffered severe brain damage. Earlier this week, after nine weeks of evidence in civil trial launched by Baert and her family, jury decided Graham was not negligent in the case. Graham’s lawyers argued bowel perforations are rare but recognized risks of tubal ligations, and it was up to the nurses to watch for symptoms of complications after the surgery. Graham also claimed Baert was partially at fault for not immediately returning to the hospital when she experienced increasing pain at home. Michels and other former patients were supposed to testify in the trial, but Court of Queen’s Bench Justice Grant Currie ruled their stories weren’t relevant to Baert’s case and would unfairly prejudice the jury. Among them was Gloria Cooke of Dawson Creek, B.C., who almost died after Graham twice punctured her bowel during tubal ligation there in 2002. After several life-saving surgeries, she was left with chronic pain and an incisional hernia in her abdomen. Cooke recently settled lawsuit with Graham out of court for an undisclosed sum. Michels said she doesn’t hold grudge against Graham, although she’s glad he is no longer practising. Graham stopped working after heart attack in 2003. “My situation is nothing compared to Lisa’s and I’m fine,” she said. “I want to express my own absolute horror that she is not getting justice. It’s absolutely unacceptable.” Jessie Isabelle Hurlburt was 73 when she went into the Lloydminster hospital for hysterectomy in 1996. Graham punctured her bowel during the operation, and she was sent to Saskatoon for life-saving surgery. After three weeks in intensive care, she left with an ileostomy bag that she would need for the rest of her life. “Once she recovered, she was quite angry about what happened to her,” said her son Les. “My mother said, ‘I want you to do something about this because don’t want this to happen to anyone else.’” Hurlburt died four years later from encephalitis, or an infection in the brain. Les said he formally complained to the college of physicians and surgeons about his mother’s surgery. Its investigation found “no medical mismanagement” by Graham. Also in 1996, Marleen Burgess saw Graham for hysterectomy. The 52-year-old said when she woke up in the Lloydminster hospital, Graham told her she’d had “complete” hysterectomy but he left one ovary to help her through menopause. But in 2004, while undergoing surgery to remove grapefruit-sized cyst on the remaining ovary, another doctor told Burgess she’d never had complete hysterectomy. She still had cervix. Burgess said her new doctor said her insides were “mess.” “She said, ‘Oh, my Lord. Who did this to you?’” Lynn Laursen said Graham cut the main artery feeding her left leg during hysterectomy in Lloydminster in 1997. “I was in danger of losing my leg and my life,” said Laursen, now 53. She said another surgeon rushed in to stitch up the artery, and save her life. She later needed two more surgeries. “When Dr. Graham did this to me, he never came and saw my husband and me to explain what happened,” said Laursen. She said she wanted the chance to testify in the Baert case and face him. “I would just ask him why it happened,” she said. Glen Luther, law professor at the University of Saskatchewan, said the judge in the Baert trial would have weighed both the prejudicial and prohibitive values of the testimony of Graham’s other patients. “He would have had to make close call.” Luther said Baert’s lawyers may have grounds for an appeal because there is not much precedent on the issue in the civil courts. [Italics are mine] [102] Dr. Graham argued that the italicized words in this article contained false, malicious and defamatory words that were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to become quadriplegic, to suffer septic shock, severe brain damage and the amputation of her hands and feet; (b) He negligently performed surgery on Sharry Michels, causing her to suffer permanent numbness and the loss of reflex in her right knee; (c) His negligent acts and omissions in his treatment of Sharry Michels warranted severe disciplinary sanction by the College of Physicians and Surgeons of Saskatchewan; (d) He negligently performed surgery on Gloria Cooke nearly causing her death and causing her to suffer chronic pain and an incisional hernia in her abdomen; (e) He negligently performed surgery on Jessie Isabelle Hurlburt nearly causing her immediate death and resulting in her requiring an ileostomy bag for the rest of her life; (f) The complications caused by his negligent surgery resulted in Jessie Isabelle Hurlburt suffering encephalitis, brain infection, which eventually led to her death; (g) His aforesaid conduct concerning Jessie Isabelle Hurlburt warranted severe disciplinary sanction by the College of Physicians and Surgeons of Saskatchewan; (h) He dishonestly and deceitfully misrepresented to Marleen Burgess that he had performed complete hysterectomy on her; (i) He negligently performed surgery on Marleen Burgess creating surgical mess; (j) He negligently performed surgery on Lynn Laursen, nearly causing her death and the loss of her left leg; and (k) He is guilty of habitual negligence in his surgical practice and should not be permitted to carry on practice as surgeon because of the unacceptable risk he poses to the life and health of patients. [103] Dr. Graham also argued that alternatively, these defamatory meanings were conveyed by legal innuendo by the combined effect of the articles written by Ms. Purdy on November 24, 28, 29 and 30, 2007 and this December article. [104] The defendants agreed that the italicized portions of this article were defamatory. They agree that the plain meaning of these italicized words was that Dr. Graham was negligent in his treatment of Lisa Baert, Sharry Michels, Gloria Cooke, Jessie Isabelle Hurlburt, Marleen Burgess and Lynn Laursen. They deny that these words have any other meaning. The defendants did not raise any other defences in relation to these words. [105] Once again, am satisfied that the natural and ordinary meaning of the words complained of go farther than simply that he was negligent in his treatment of these six individuals. The paragraphs complained of relating to Lisa Baert, when read together, would lead reasonable person to believe that Dr. Graham made surgical mistakes on four other women before the mistakes he made during Ms. Baert’s tubal ligation and that as result of his mistakes, she suffered septic shock, severe brain damage, doctors had to amputate her hands and feet and she is now quadriplegic. [106] As relates Sharry Michels, the words in the paragraphs complained of should be read together. The gynecologist, who she later identified as Dr. Graham, accidentally clamped her femoral artery, nerve and vein during hysterectomy he was performing on her in 1998. When she woke up in the recovery room her right leg was cold and felt like it was asleep. She later learned that she may never regain feeling in her leg. Her knee is still numb and she has no reflex in it but her leg has recovered about 85 percent of its normal function. She consulted lawyer about suing Dr. Graham but he advised against it and she decided not to lay complaint against him to the Saskatchewan College of Physicians and Surgeons, decision she now regrets. [107] The defendants already admit that these words indicate that Dr. Graham negligently performed surgery on Ms. Michels. But it is apparent to anyone reading the words that as result of that negligent surgery, she has permanent numbness and no reflex in her right knee. cannot however conclude that reasonable person considering these comments complained of, read alone, or in the context of the article as whole, or even read in conjunction with the other articles written by Ms. Purdy, would understand that these words meant that Dr. Graham’s negligent acts and omissions in his treatment of Ms. Michels warranted severe disciplinary action by the College of Physicians and Surgeons of Saskatchewan. Ms. Michels is not referenced in any other articles except this one and the words make it clear that she did not pursue either lawsuit or complaint to the College after receiving legal advice. Having found out about Ms. Baert’s case, she now regrets not making complaint. The construction of these paragraphs does not allow one to draw the conclusion that Dr. Graham’s treatment of her warranted severe disciplinary sanction. The reasonable person would interpret these words as meaning that based on the legal advice she received, there was no point pursuing complaint about Dr. Graham to the College. [108] The words in the paragraphs complained of referencing Gloria Cooke are very clear in their meaning. Ms. Cooke almost died after Dr. Graham twice punctured her bowel during tubal ligation in 2002 and after several life-saving surgeries she has chronic pain and an incisional hernia in her abdomen. Even without considering the comments that she sued Dr. Graham and he settled with her, an ordinary person would understand these words to mean that Dr. Graham negligently performed surgery on Ms. Cooke, that she nearly died as result of that surgery and that she now has chronic pain and an incisional hernia as result of his mistakes. [109] There are words in the paragraphs complained of that relate to another of Dr. Graham’s former patients, Jessie Isabelle Hurlburt. These portions again are quite clear in their meaning. Dr. Graham performed hysterectomy on her in 1996 and in the course of doing so, punctured her bowel. As result of that, she was sent to Saskatoon for life-saving surgery. She was left with an ileostomy bag that she would need for the rest of her life. She was upset about this surgery and asked her son Les to do something about it. He filed formal complaint with the College of Physicians and Surgeons. What is omitted from the words complained of by Dr. Graham, but which appear in the article, is that after an investigation the College found “no medical mismanagement” by him. Four years later Ms. Hurlburt passed on as result of brain infection. Again, the defendants admit that these words indicate that Dr. Graham was negligent in his treatment of Ms. Hurlburt but these words also clearly indicate that as result of this negligence she almost died, had to have life-saving surgery and thereafter required an ileostomy bag for the rest of her life. [110] These words though do not leave one believing that she developed encephalitis as complication of Dr. Graham’s negligent surgery on her some four years earlier. reasonable person looking at these words themselves, in the context of the article as whole or in light of the previous articles complained of written by Ms. Purdy, would conclude brain infection occurring some four years later was separate and apart from any complication resulting from negligent hysterectomy. [111] am also not satisfied that looking at these words by themselves, in the context of the article as whole or in light of the previous articles complained of, that reasonable person would take from the words that as result of Dr. Graham’s negligent surgical conduct severe disciplinary sanction by the Saskatchewan College of Physicians and Surgeons was warranted. This is the only article that speaks about Ms. Hurlburt. As earlier pointed out, Dr. Graham conveniently admitted from the words complained of that the College, after investigating his treatment of Ms. Hurlburt, determined that there was no medical mismanagement on his part. Read in this light, reasonable person would understand that these words meant that Dr. Graham’s treatment of Ms. Hurlburt did not warrant disciplinary sanction from the College. [112] The next person mentioned in the words complained of is Marleen Burgess. The words in these paragraphs in the article advise that in 1996, Dr. Graham saw her for hysterectomy. Reading the paragraphs as whole, it is clear that Dr. Graham was the person who performed the hysterectomy on her. When she woke up after the surgery, Dr. Graham told her she had complete hysterectomy but he had left one ovary inside her. In 2004 she had surgery to remove cyst from that ovary. The doctor who did that surgery told her that she did not previously have complete hysterectomy and that her insides were “a mess”. Bearing in mind that the defendants admit that these words mean that Dr. Graham was negligent in his treatment of Ms. Burgess, the objective, natural and ordinary meaning of these words as whole is that Dr. Graham misrepresented to Ms. Burgess that he had performed complete hysterectomy on her and that as result of his negligent treatment of her, her insides were mess. In the context of the article as whole or in relation to the previous articles complained of, there is nothing that would lead person to believe that Dr. Graham made the misrepresentation to Ms. Burgess dishonestly or deceitfully. [113] The words in the paragraphs complained of referring to Lynn Laursen are short and to the point. Dr. Graham, in the course of performing hysterectomy on her in 1997, cut the main artery feeding her left leg. She almost lost her leg and her life. Another doctor stitched up her artery and saved her life. The clear meaning of these words to anyone reading them is that Dr. Graham negligently performed surgery on Ms. Laursen nearly causing her death and the loss of her left leg. [114] Finally, Dr. Graham argues that the words and paragraphs he has identified as problematic lead to the defamatory meaning that he is guilty of habitual negligence and should not be permitted to carry on practice as surgeon because of the unacceptable risk he poses to the life and health of patients. Looking at all of the words Dr. Graham complains of and the context of the entire article, an ordinary person would reasonably interpret that Dr. Graham was habitually negligent in his surgical practice. But this article, like the other articles written by Ms. Purdy on November 28, 29 and 30, makes it clear that Dr. Graham stopped working after heart attack in 2003 and is no longer practicing medicine. Given this information in light of the article as whole, reasonable person would conclude that thankfully, Dr. Graham has already retired from the practice of medicine for health reasons and is no longer problem. (vii) The January 3, 2008 Article [115] This is the last article that Dr. Graham complains of. It appeared on page A3 of the Star Phoenix on January 3, 2008 and on the newspaper’s websites. This article reads as follows: Baert to appeal tubal ligation ruling Lisa Baert and her family are appealing the decision of civil jury that found her gynecologist not negligent after routine tubal ligation left her brain-damaged quadriplegic. Baert’s lawyers filed the notice with the Saskatchewan Court of Appeal in Regina on Dec. 27. The 12-page document claims mistakes were made by Court of Queen’s Bench Justice Grant Currie, both during the trial and with his instructions to the jury. The notice asks the province’s top court to find Dr. Kenneth Graham liable and assess damages or order second trial in Saskatoon. Baert and her family claimed more than $10 million in damages against Graham. The family reached an undisclosed settlement with the Lloydminster hospital and some of its nurses before the trial began in the fall. In November, after sitting through nine weeks of evidence, an all-female jury determined Graham was not negligent in the case. Baert was 21 when she went to the Lloydminster hospital on July 14, 1999, to have her “tubes tied.” She and her husband, Mark, were financially strapped and already had two children. During the laparoscopic operation, Graham unknowingly punctured Baert’s bowel and the two-millimetre hole allowed toxins to leak into her body. She was discharged from hospital but two days later was rushed back in septic shock. Doctors had to amputate her hands and feet. She also suffered severe brain damage. Baert, now 29, lives in Saskatoon’s Parkridge Centre, long-term care home where staff change her diapers and put on her prosthetic limbs. Graham, who no longer practices as doctor, testified bowel perforations are recognized although rare risk of tubal ligations. The 55-year-old said it was up to nurses to monitor Baert for symptoms of complications after the surgery. Graham also argued Baert was partially responsible for her injuries because she did not return to the hospital when she experienced increasing pain at home. Baert and concerned neighbour allegedly called the hospital three times in the two days following the surgery, concerned about her increasing pain. They talked to unknown nurses who said Baert should wait out the pain and gave permission for her to take the neighbour’s prescription pain killers. Baert’s lawyers argued Graham did not get informed consent for the surgery, used improper technique and should have known he punctured her bowel when equipment in the operating room measured high pressure reading. They said Graham also had duty to pass that information on to Baert and the nurses so they could better watch for symptoms of complications. [Italics are mine] [116] Dr. Graham states that the natural and ordinary meaning of the italicized words in this article are false, malicious and defamatory and were understood to mean: (a) He negligently performed surgery on Lisa Baert, thereby causing her to suffer septic shock, the amputation of her hands and feet and severe brain damage; (b) He performed surgery on Lisa Baert without her informed consent; and (c) He deliberately and deceitfully concealed from Lisa Baert and from her nurses the fact that he had punctured her bowel during surgery thereby unconscionably exposing his patient to the risk of death or severe injury. [117] In the alternative, Dr. Graham stated that the aforesaid defamatory meanings were conveyed by legal innuendo, by the combined effect of all of the other articles written by Chris Purdy that he complained of. [118] Defendants’ counsel argued that the natural and ordinary meaning of the words complained of is non-defamatory. In his view, this article was about the Baert family’s decision to appeal the jury’s determination in the case. The defendants did not raise any other defences in relation to the words Dr. Graham complains of in this article. [119] The first three paragraphs that Dr. Graham complains of are juxtaposed together in the article. Prior to these three paragraphs, the article twice states that Dr. Graham was found not negligent after jury trial and further that notice of appeal has now been filed alleging number of mistakes made by the presiding judge and in his instructions to the jury. The paragraphs following these three paragraphs complained of summarize Dr. Graham’s position at trial and Ms. Baert’s lawyer’s arguments at trial. [120] These first three paragraphs are summary of what happened to Ms. Baert. The plain meaning of these words is that Dr. Graham unknowingly punctured Ms. Baert’s bowel thereby allowing toxins to leak into her body, two days later she returned to the hospital in an ambulance suffering from septic shock and consequently doctors had to amputate her hands and feet and she suffered brain damage. These words are reasonably capable of having the defamatory meaning that Dr. Graham was negligent in his treatment of Ms. Baert and that he caused her catastrophic injuries. [121] However, these paragraphs must be considered in the context of the article as whole. The byline indicates that the Baerts are going to appeal the decision and the article twice states that Dr. Graham was found not negligent in the case. This is an antidote to the defamatory comments in the three paragraphs complained of by Dr. Graham. reasonable person looking at this article in its entirety would understand that Dr. Graham was found not negligent of puncturing Ms. Baert’s bowel and causing her these devastating injuries and the Baerts have appealed this decision. It is inappropriate to consider these three paragraphs separate from the rest of the article. When that is done, the bane is removed by the antidote. [122] The other words complained of by Dr. Graham in the article also do not carry the defamatory meanings that he suggests. The comments that Dr. Graham did not get Ms. Baert’s informed consent for the surgery, that he used an improper technique, that he should have known he punctured her bowel and that he had duty to pass that information on to Ms. Baert and the attendant nurses are attributed to the argument made by Ms. Baert’s lawyers at trial. The two paragraphs in question make that clear. They start with the words “Baerts’ lawyers argued …” and “they said …”. Immediately preceding these two paragraphs are two paragraphs summarizing Dr. Graham’s arguments at the trial. reasonable person reading this article would understand that these were the positions taken by each of the parties at trial, that Dr. Graham’s position was accepted as he was found not to be negligent, that the Baerts’ arguments were not accepted and now the Baerts have appealed. These words do not support the defamatory meaning that Dr. Graham suggests. [123] Even looking at the combined effect of all of the previous articles complained of by Dr. Graham, reasonable person would still not be left with the impression that these words meant that Dr. Graham performed surgery on Ms. Baert without her informed consent and that he deliberately and deceitfully concealed from her and the nurses that he had punctured her bowel thereby unconscionably exposing her to risk of death or severe injury. That person would still understand that these comments are about the Baerts appealing and what they are appealing. The allegations that this January 3, 2008 article is defamatory are dismissed. [124] To summarize, the evidence establishes that Ms. Purdy defamed Dr. Graham in articles she wrote and that were published in the Star Phoenix newspaper and/or on the newspaper’s websites on November 28, 29 (both articles), 30 and December 1, 2007, the defamatory meanings of those words being: (a) He negligently performed surgery on Lisa Baert causing her to suffer devastating injuries and the jury’s verdict exonerating him of negligence was wrong; (b) He negligently performed surgery on Lisa Baert causing her to suffer septic shock, amputation of her hands and her legs below the knees, cardiac arrests resulting in severe brain damage leaving her with the mental capacity of child and requiring her to live in long-term care facility; (c) He negligently performed surgery on Lisa Baert causing her to become quadriplegic; (d) He did not advise the nurses or Lisa Baert that he had punctured her bowel during surgery or alternatively that he negligently failed to do so; (e) He did not advise Lisa Baert of the risks associated with tubal ligation surgery and did not receive her informed consent to perform such surgery; (f) The verdict of the jury exonerating him in his treatment of Lisa Baert was perverse; (g) He negligently performed surgery on Gloria Cooke and negligently failed to address post-surgery complications that led to septic shock, permanent chronic pain, an incisional hernia in her abdomen, the permanent loss of her stomach muscles and nearly caused her death; (h) He negligently performed surgery on Dana McLellan placing her health and life in jeopardy; (i) He negligently performed surgery on Sharry Michels causing her to suffer permanent numbness and the loss of reflex in her right knee; (j) He negligently performed surgery on Jessie Isabelle Hurlburt nearly causing her immediate death and resulting in her requiring an ileostomy bag for the rest of her life; (k) He misrepresented to Marleen Burgess that he had performed complete hysterectomy on her; (l) He negligently performed surgery on Marleen Burgess creating surgical mess; (m) He negligently performed surgery on Lynn Laursen nearly causing her death and the loss of her left leg; and (n) He is guilty of habitual negligence in his surgical practice. [125] Having reached this conclusion, must determine the liability of the remaining defendants. [126] Rod Nickel was the city editor at the Star Phoenix newspaper from September 2007 to January 2008. He assigned Chris Purdy to cover the Baert trial. He does not recall the instructions he gave to her or any particular discussion he had with her prior to the trial. He would have had day-to-day understanding of what Ms. Purdy was reporting on and what articles she was submitting on the trial. He could not explain what investigation he undertook to determine if Ms. Purdy covered the trial in balanced fashion except to say that he was doing his job while she was covering the trial. [127] Mr. Nickel did not recall what input he had on what Ms. Purdy reported on or what days of the trial she attended but normally he would discuss with her what stage the trial was at and what was possibly coming up. [128] He was aware that Ms. Purdy was writing articles about Dr. Graham’s previous patients but he was not sure when he became aware of that. He did not recall if he assigned her to do this or if she came up with this on her own. He did not recall what discussions he had with her about her research efforts or verifying the allegations made by these other patients. He did not recall whether he confirmed with Ms. Purdy whether she spoke to any medical doctors that had treated these patients after Dr. Graham. [129] After reviewing Ms. Purdy’s articles dated November 24, 2007 through to and including the January 3, 2008 article, he could not recall if he performed an editorial function over these articles before they were published nor did he recall having any discussions with Ms. Purdy concerning their content or any revisions or edits. [130] Dale Brin was the publisher and general manager of the Star Phoenix newspaper from 2004 to 2010. He had no involvement in the content or editing of any articles written by the reporter covering the Baert trial, he was not advised about the reporting in the case nor did he have any conversations with anyone about the reporting. [131] Cameron Hutchinson was the managing editor of the Star Phoenix in 2000. In 2007 he was aware that Ms. Purdy was covering the Baert trial but he does not recall having any involvement in the reporting or editing of the stories she wrote. He did not believe that he would have seen the stories until they appeared in the newspaper as at that time he oversaw the newsroom and reported to Steven Gibb and Rod Nickel. He did not recall having any conversations with Mr. Nickel about any of the articles Ms. Purdy wrote prior to publication. He had no recollection about whether concerns were raised or whether they had any discussions about Ms. Purdy’s reporting on other patients of Dr. Graham or about what Ms. Purdy’s investigation of the allegations made by these other patients may have been. [132] Steven Gibb was the editor-in-chief of the Star Phoenix from 1993 to 2010. [133] The defendant, Canwest Publishing Inc. owned the Star Phoenix newspaper and its websites and employed the other named defendants. The Star Phoenix newspaper, Canwest Publishing Inc. and/or its assets were purchased by Postmedia Network Inc. in or around 2012. [134] In case such as this, all persons who aid or participate in the publication of defamatory expression, in furtherance of common design, may be held liable in damages to the plaintiff, whether or not at the time they realized they were committing the tort of defamation. The law regards them as joint tortfeasors. Botiuk at paras. 73 to 77; Hill Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] SCR 1130 at para 176 [Hill]. [135] The publication of libel, composed by one, printed by another and distributed by third, is joint tort, with joint and several liability. Therefore, where it is published in newspaper, the injured person may sue in the same action the editor, the proprietor, the printer and the publisher, and each is liable on the judgment for the whole amount; the publication is the joint act of all. Lambert at para. 6. [136] In this case, and in light of the aforementioned case law, I am satisfied that at the time of the publishing of the defamatory articles, Rod Nickel, being the city editor and Ms. Purdy’s immediate supervising editor, Cameron Hutchinson being the managing editor, Dale Brin being the publisher and general manager of the Star Phoenix and Steven Gibb being the editor-in-chief of the Star Phoenix are all joint tortfeasors of Ms. Purdy’s defamatory comments and as such, jointly and severally liable in defamation to Dr. Graham. [137] I am also satisfied that Canwest Publishing Inc. as the former owner of the Star Phoenix and its websites and Postmedia Network Inc. as the current owner of the Star Phoenix and its websites are also joint tortfeasors with Ms. Purdy and the other defendants noted and as such are jointly and severally liable in defamation to Dr. Graham. (c) What damages, if any, is Dr. Graham entitled to? [138] In the pleadings, Dr. Graham claims against the defendants, jointly and severally, as follows: (a) General damages in the sum of $2,000,000; (b) Aggravated damages in the sum of $1,000,000; (c) Punitive damages in the sum of $1,000,000; (d) Special damages in an amount to be particularized; [139] In closing argument, Dr. Graham’s counsel advised that they were only seeking general and aggravated damages. He argued that general damages award in defamation case is very subjective determination and one that must be made where there is no tangible injury. He reminded me that aggravated damages ought not to be awarded unless malice has been shown but in his view there was considerable evidence of malice in this case. He took issue with any suggestion by the defendants that Dr. Graham had bad reputation when he came to court. In his view, must look at Dr. Graham’s reputation at the time of the defamation. He urged me to approach the issue by asking myself “what is sufficient sum that recognizes that this was bad, unwarranted defamation?” [140] Counsel referred me to number of cases including Hiltz and Seamone Co. Nova Scotia (Attorney General) (1999), 1999 CanLII 13144 (NS CA), 173 NSR (2d) 341 (CA) $200,000 general damages; Universal Weld Overlays Inc. Shaben, 2001 ABQB 1009 (CanLII) $100,000 general damages and $30,000 aggravated damages; Myers Canadian Broadcasting Corp. (2001), 2001 CanLII 4874 (ON CA), 54 OR (3d) 626 (CA) $200,000 for general damages and $150,000 for aggravated damages; Leenen Canadian Broadcasting Corp., (2000), 2000 CanLII 22380 (ON SC), 48 OR (3d) 656 Ont. Sup. Ct.) [Leenen] general damages of $400,000 and aggravated damages of $350,000; and Fiola LeBrun, 2002 MBQB 312 (CanLII), 169 Man (2d) 172 general damages of $250,000 and $100,000 aggravated damages. [141] Defendants’ counsel argued that Dr. Graham was only entitled to general damages in an amount not exceeding $25,000. He stated that while little is to be gained from detailed comparison of libel awards in other cases, the Court should use as an appropriate measure of the upper end of the range of damages, the Saskatchewan Court of Appeal’s decision in Rubin Ross, 2013 SKCA 21 (CanLII), 409 Sask 202 ($100,000 general damages) and the Saskatchewan Court of Queen’s Bench decision in Duke Puts, 2001 SKQB 130 (CanLII), 204 Sask 130 ($100,000 general damages and $150,000 aggravated damages). [142] He suggested that the Court pay particular attention to the factual background in this case and consider that Dr. Graham’s reputation was already previously damaged at the time he brought his claim in the present case. He denied that there was any malice on behalf of the defendants or any of them. [143] Brown on Defamation, vol at 25-33 to 23-36, describes general compensatory damages as follows: The successful plaintiff in defamation action is entitled to recover, as general compensatory damages, such sum as will compensate him for the wrong he has suffered. That sum must compensate him for the damage to his reputation; vindicate his good name; and take account of the distress, hurt and humiliation which the defamatory publication has caused. In assessing the amount, consideration may be given to the damage which may yet accrue to the plaintiff as natural consequence of the publication since in any action for defamation damages must be assessed once and for all. There must be some rational and appropriate relationship between the harm suffered by the plaintiff and the amount of damages awarded. Compensatory damages are not awarded to punish defendant, nor should they be used to enrich the plaintiff at the expense of the offending party. [144] In Mann International Assn. of Machinists and Aerospace Workers, 2012 BCSC 181 (CanLII) [Mann], Masuhara J. discussed the principles governing an award of general damages: [129] General damages for defamation are presumed. The plaintiff does not need to prove injury in order to recover an award for damages. However, damages must be based upon firm factual basis and in sensible manner: Brown on Defamation, vol. 6, ch. 25 at 2, 12; Hill at para. 164; Halls v. Mitchell, 1926 CanLII 357 (ON CA), [1927] D.L.R. 163 (Ont. C.A.), per Riddell J.A. at 175, citing Ratcliffe v. Evans, [1892] Q.B. 524 at 528 (C.A.); Smith (S.C.) at para. 91. [130] General damages for defamation are at large, meaning that the court is entitled to make subjective assessment without requiring proof of specific financial loss. [131] There is no cap placed on damages for defamation: Hill at para. 168: [132] Each case is unique. Accordingly, there is no formula for determining general compensatory damages. However, in Hill at para. 182 the following factors, were identified in determining an award of general damages: (a) the plaintiff's conduct, position and standing; (b) the nature of the defamation; (c) the mode and extent of publication; (d) the absence or refusal of any retraction or apology; and (e) the whole of the defendant's conduct from the time of publication to the end of trial. [145] In Leenen the Court provided the following non-exhaustive list of factors to take into account in the assessment of general damages: [205] (a) the seriousness of the defamatory statement; (b) the identity of the accuser; (c) the breadth of the distribution of the publication of the libel; (d) republication of the libel; (e) the failure to give the audience both sides of the picture and not presenting balanced review; (f) the desire to increase one's professional reputation or to increase ratings of particular program; (g) the conduct of the defendant and defendant's counsel through to the end of trial; (h) the absence or refusal of any retraction or apology; (i) the failure to establish plea of justification. [146] In Hill Cory J. described aggravated damages, what is required before they can be awarded and some of the factors court can consider in assessing them: 188 Aggravated damages may be awarded in circumstances where the defendants' conduct has been particularly high-handed or oppressive, thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement. The nature of these damages was aptly described by Robins J.A. in Walker v. CFTO Ltd., supra, [(1987), 1987 CanLII 126 (ON CA), 59 OR (2d) 104] in these words at p. 111: Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress the humiliation, indignation, anxiety, grief, fear and the like suffered by the plaintiff as result of being defamed, the plaintiff may be entitled to what has come to be known as “aggravated damages”. 189 These damages take into account the additional harm caused to the plaintiff's feelings by the defendant's outrageous and malicious conduct. Like general or special damages, they are compensatory in nature. Their assessment requires consideration by the jury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant. 190 If aggravated damages are to be awarded, there must be finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff. See, for example, Walker v. CFTO Ltd., supra, at p. 111; Vogel, supra, at p. 178 [[1982] WWR 08]; Kerr v. Conlogue (1992), 1992 CanLII 924 (BC SC), 65 B.C.L.R. (2d) 70 (S.C.), at p. 93; and Cassell Co. v. Broome, supra, at pp. 825-26 [[1972] All ER 801]. The malice may be established by intrinsic evidence derived from the libellous statement itself and the circumstances of its publication, or by extrinsic evidence pertaining to the surrounding circumstances which demonstrate that the defendant was motivated by an unjustifiable intention to injure the plaintiff. See Taylor v. Despard, supra, at p. 975 [1956 CanLII 124 (ON CA), [1956] OR 963]. 191 There are number of factors that jury may properly take into account in assessing aggravated damages. For example, was there withdrawal of the libellous statement made by the defendants and an apology tendered? If there was, this may go far to establishing that there was no malicious conduct on the part of the defendant warranting an award of aggravated damages. The jury may also consider whether there was repetition of the libel, conduct that was calculated to deter the plaintiff from proceeding with the libel action, prolonged and hostile cross-examination of the plaintiff or plea of justification which the defendant knew was bound to fail. The general manner in which the defendant presented its case is also relevant. Further, it is appropriate for jury to consider the conduct of the defendant at the time of the publication of the libel. For example, was it clearly aimed at obtaining the widest possible publicity in circumstances that were the most adverse possible to the plaintiff? [147] As to what constitutes malice, it is more expansive than the everyday meaning of desire to harm another. It includes spite or ill-will and relates to any indirect motive which conflicts with the sense of duty created by the occasion. Courts may infer person’s motive for publishing defamatory statements but only from what the person said, did or knew. defendant is actuated by actual or express malice if he or she publishes the words: (i) Knowing them to be false; or (ii) With reckless indifference whether they are true or false; or (iii) For the dominant purpose of injuring the plaintiff because of spite or animosity; or (iv) For some other dominant purpose which is improper or indirect. Court may consider the whole of the defendants’ conduct and the context in which it was made, both current and former. See Palen Dagenais, 2012 SKQB 383 (CanLII) at para 32, 406 Sask 107; Mann at paras 96 to 98. [148] In Botiuk, the Supreme Court of Canada said that the following comment from Lord Diplock in Horrocks Lowe, [1975] AC 135 (HL) is generally representative of the Canadian position on recklessness: 97 what is required on the part of the defamer to entitle him to the protection of the privilege is positive belief in the truth of what he published or, as it is generally though tautologously termed, “honest belief”. If he publishes untrue defamatory matter recklessly, without considering or caring whether it be true or not, he is in this, as in other branches of the law, treated as if he knew it to be false. But indifference to the truth of what he publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at positive belief that it is true. But despite the imperfection of the mental process by which the belief is arrived at it may still be “honest”, that is, positive belief that the conclusions they have reached are true. The law demands no more. [Emphasis added.] [149] Ms. Purdy testified that as journalist, she was familiar with journalistic best practices and specifically what those practices said about accuracy and fairness. As diligent journalist, it was her practice to keep notebooks and record pertinent facts including leads, sources and their contact information and she did so in the course of covering the Baert trial. [150] Ms. Purdy did not recall attending court on November 27, 2007 to listen to the judge’s charge to the jury. However, she had 13 pages of notes about the charge so she believed that she was there. In her notes she wrote down that the judge told the jury “not every mistake constitutes negligence”, “a bowel perforation sometimes happens with skilled surgeons using proper technique”, “BP happens to even the most skilled surgeon” and “BP is inherent risk of surgery itself”. Ms. Purdy agreed that these were important points in the judge’s charge that reader should or would want to know, however she acknowledged that she did not put them in any of her articles. [151] Ms. Purdy testified that after the verdict came down on November 28, she wrote an article entitled “Gynecologist not negligent in tubal ligation lawsuit”. She said that this article does not report solely on the jury’s verdict in the case but includes allegations that Gloria Cooke and Dana McLellan suffered complications as result of the surgery Dr. Graham performed upon them. She acknowledged that these were serious allegations being made by these two women and as result, she would have spoken to another source to verify their information. She said that she spoke to John Jordan, Ms. Cooke’s lawyer, but did not speak to Ms. Cooke and did not recall speaking to anyone else. She did not ask for or see Ms. Cooke’s medical records and she did not call any of the doctors that treated Ms. Cooke. She did not speak to medical professional about Ms. Cooke’s allegations. [152] Ms. Purdy said that in her notes from her discussions with Mr. Jordan, she recorded “pressure from maternity ward because baby in distress”. She reluctantly admitted that this was some significant context that she did not mention in her article. She also admitted that she did not try contacting Dr. Graham’s lawyer, she cannot say if she tried contacting Dr. Graham or left message for him but agreed that there was nothing in the article about her trying to contact him. [153] As well, Ms. Purdy said that all of her information about Dana McLellan came from previous newspaper articles. She did not recall trying to contact Ms. McLellan or the writer of the previous article. She did not believe that she tried to contact any of Ms. McLellan’s medical doctors or obtain her medical records. She could not say that she tried to contact Dr. Graham to speak to him about Ms. McLellan’s case. [154] Ms. Purdy agreed that as an obstetrician and gynecologist, Dr. Graham would have performed many of the types of surgeries he performed on Ms. Cooke and Ms. McLellan. She acknowledged that she did not try to determine his rate of complication or try to compare his rate of complication to that of the average obstetrician/gynecologist. She indicated that that would have been helpful information to know. [155] In one of the paragraphs in the article she stated that the British Columbia College of Physicians and Surgeons granted licence to Dr. Graham “despite” Baert’s injuries in Saskatchewan. She said that she chose to use the word “despite” because she felt that the College would have had to have considered the Baert case before giving Dr. Graham licence. She admitted that she had not spoken to the College about this nor did she have any information that Dr. Graham had done anything wrong. [156] Ms. Purdy did speak to Susan Prins of the College and was advised that the community Dr. Graham was working in did not have appropriate back-up in case of an emergency situation and that “no disciplinary measure is necessary”. She did not report this in her article but instead chose to simply state that Dr. Graham’s licence was not revoked. She was not sure why she chose those words. [157] Ms. Purdy acknowledged that she spoke to someone at the Northern Health Authority and was advised that Dr. Graham was “never disciplined so no release of report and no penalty”. Despite knowing this information, she did not include this in her article. [158] Ms. Purdy testified that the first November 29 article was just reprint of the website article she had written on November 28. She did not recall whose decision it was to write the second article on November 29 entitled “Routine surgery became health nightmare”. She agreed that she did not refer to the verdict in the trial in this story and that person reading this article would have no reason to think that Dr. Graham got acquitted in negligence action. [159] Ms. Purdy testified that the November 30 article was about the Baert family deciding to appeal the verdict and Mark Baert’s response to the verdict. She acknowledged that there was nothing in the article about Dr. Graham’s reaction to the verdict and admitted that she could not recall asking Dr. Graham for comment, if he was unavailable or if he had no comment. [160] Ms. Purdy testified that she wrote the December 1, 2007 article because number of Dr. Graham’s previous patients were saying that they had suffered complications as result of Dr. Graham performing surgery on them. In light of the Baert case she thought that this was important information to share with the public. [161] According to Ms. Purdy, this article was about mistakes that Dr. Graham had made in relation to five other people besides Lisa Baert. She said that she spoke to Sharry Michels, Marleen Burgess and Lynn Laursen directly. She did not speak to Ms. Cooke directly. She obtained her information about Ms. Cooke from speaking to Ms. Cooke’s lawyer, John Jordan. She was unable to speak to Jessie Hurlburt as she had passed away. Her information about Ms. Hurlburt came from discussion she had with the deceased’s son, Les Hurlburt. She invited all of these people to send her any documents supporting what they had told her. The only person that sent her anything was Les Hurlburt. He forwarded her number of documents prior to December 1. [162] Ms. Purdy said that she spoke to one other woman whose story she did not include in this article. She said that this person seemed to be talking about rumours. She could not trust what this woman was saying and she did not think it appropriate to report on that. [163] Ms. Purdy acknowledged that prior to writing this article she never asked Sharry Michels for her medical or physiotherapy records, she did not recall speaking to any of her doctors, she did not try to contact her physiotherapist and speak to them about Ms. Michels’ case and she did not know what femoral artery was. [164] Ms. Purdy said that she received number of documents from Les Hurlburt about his mother Jessie, including medical records. She did not ask Mr. Hurlburt for any other medical information. She admitted that there were at least five other doctors referenced in these medical records but she took no steps to speak to any of them nor did she speak to any of Ms. Hurlburt’s doctors. According to her, getting consent to speak to other doctors would have been time consuming. She said that she did not speak to medical doctor about interpreting the documents for her. Instead, she relied on the documents and what Les Hurlburt told her. [165] In the material she received from Mr. Hurlburt was correspondence between him and the Saskatchewan College of Physicians and Surgeons. She was aware that Mr. Hurlburt had filed complaint with the College regarding Dr. Graham’s treatment of his mother but she did not read the complaint he sent to the College even though it was one of the documents he sent her. Another of the documents was letter dated October 15, 1997 from Dr. Graham to the College responding to the Hurlburt complaint. She read this letter and in the letter, Dr. Graham referenced that Ms. Hurlburt had had bowel cancer surgery, was treated with chemotherapy and there were post-operative problems with stitches. When asked why she did not report this, she said that it had occurred in 1977 and she did not think it was relevant. However she admitted that she never spoke to medical professional to find out if it was relevant or not. Ms. Purdy also acknowledged that elsewhere in the letter was an indication that the surgery that Dr. Graham had performed on Ms. Hurlburt was not regular hysterectomy. Despite knowing this, she did not report this in her article either. [166] Ms. Purdy also agreed that she read the College’s response to Mr. Hurlburt after they had completed their investigation. After reading the response, she was aware that the investigation had found that Dr. Graham had done nothing wrong, they advised that suturing bowel may inadvertently occur and it may be difficult to diagnose. She did not specifically report this in the article and despite knowing that Dr. Graham was not at fault, she still felt that it was newsworthy to include Ms. Hurlburt’s case in the article. [167] Ms. Purdy said that in terms of the Marleen Burgess information, she just relied on what Ms. Burgess had told her. She said that she only had general understanding of what hysterectomy was and did not believe that “complete hysterectomy” was medical term. However, she did not speak to medical professional or Ms. Burgess’s doctors to find out what that term meant. Moreover she admitted that she made no effort to contact the doctor who told Ms. Burgess that her insides were “a mess” to confirm whether or not that was indeed the case. In her view, she did not have the time to do it and she felt there would have been privacy issues. [168] Ms. Purdy also admitted that she did nothing to confirm the information she received from Lynn Laursen. In their discussions, Ms. Laursen had mentioned Dr. Gupta. Ms. Purdy confirmed that she did not try to contact this doctor even though she admitted that the doctor may have some important information for her story. [169] Ms. Purdy did not recall if she made any attempt to contact Dr. Graham regarding any of these five people but she hoped that she would have. She did not however receive anything from Dr. Graham regarding any of these cases. She did not recall if there was deadline for the story and did not know if she had more time to investigate it. [170] Ms. Purdy denied writing the December article about these other patients because she felt Ms. Baert did not get justice. According to Ms. Purdy, the jury’s verdict in the Baert case was not surprising to her. She thought it was fair given the evidence the jury heard and the questions they had to answer. She said that she agreed with the jury’s finding that Dr. Graham was not negligent. She had no basis to challenge their finding. She felt that she was doing her job and was providing fair and balanced reporting during the trial. She was not out to ruin Dr. Graham despite what he or his children thought. Ms. Purdy confirmed that she has never issued retraction or an apology to Dr. Graham. [171] Both parties called expert witnesses in this case. Dr. Graham called John Miller. Mr. Miller was senior newsroom editor at the Toronto Star Newspaper for 18 years before moving on to be the chair of the School of Journalism at Ryerson University from 1986 to 1996. Thereafter until 2009, he was professor at the School of Journalism and now holds the title of Professor Emeritus. He was qualified with the consent of the defendants’ counsel as an expert in journalism. [172] Mr. Miller testified that journalists are expected to follow commonly accepted journalistic legal and ethical standards developed by the Canadian Association of Journalists. These standards stress, among other things, accuracy and verification. journalist is to make every effort to verify the identities and backgrounds of their sources, seek documentation to support the reliability of those sources and their stories and be careful to distinguish between assertions and fact. The onus is on the journalist to verify all information even when it emerges on deadline. Secondly, fairness. journalist is to respect the rights of people involved in the news. Before journalist publishes criticisms or accusations they must give people, companies or organizations that are being criticized or accused the opportunity to respond. They must make genuine and reasonable effort to contact them and if they decline comment, they must say so. [173] Mr. Miller reviewed the articles written by Ms. Purdy on November 24, 28, 29 (two articles), 30, December 1, 2007 and January 3, 2008. The November 28, 2007 article entitled “Gynecologist Not Negligent in Tubal Ligation Lawsuit” and the November 29, 2007 article entitled “Gynecologist Not Negligent; Punctured Bowel Led to Brain Damage” were identical in content in his view and both fell short of the journalistic standard of care. According to Mr. Miller, the job of these stories was to report the jury’s verdict in complicated legal case that the newspaper had been covering for the last two months. These stories should have summarized the key testimony presented at the trial and if possible, highlight what evidence may have caused the jury to find Dr. Graham not negligent. Instead, large portion of these stories talks about other cases involving Dr. Graham. [174] These articles did not meet the journalistic standard of care for two reasons: firstly they were not fair, balanced reporting of the verdict in the Baert trial. The information about Dr. Graham’s defence was sparse, there was no reaction to the verdict from either Mr. Baert or Dr. Graham, there was no detail on what questions jury was to answer and the reader was left wondering why Dr. Graham was found not negligent. Secondly, the investigative reporting of Dr. Graham’s other patients should have been stand-alone article written after the reporter had the opportunity to do more thorough job of investigating the allegations. [175] Mr. Miller was also of the view that Ms. Purdy’s editors had responsibility to make sure that the verdict in the trial was reported fully, fairly and accurately and that her information about Dr. Graham’s other patients was verified. Unfortunately, he felt that they allowed inadmissible material to get in these articles and they never ensured that Ms. Purdy’s information about Ms. Cooke or Ms. McLellan was verified with anyone. Instead, this was single-sourced and second-hand information from lawyer and newspaper article and there was little differentiation between what was verified as fact and what the sources merely alleged. [176] It was Mr. Miller’s opinion that the December 1, 2007 article entitled “Former Patient Wanted Chance to Confront Doctor” repeated some of the unverified information that appeared in the November 28 and 29 stories and added more cases. Again however, there was no attempt to verify the allegations these people were making with doctor or to seek Dr. Graham’s side of the story. [177] He opined that this story did not need to run right after the Baert trial. There was time to wait until the information from these people could be verified and documentation received and analyzed, if necessary, by medical experts. There was certainly time to wait until Dr. Graham could be interviewed to get his side of the story. [178] Mr. Miller also reviewed the material that Les Hurlburt had sent to Ms. Purdy. He noted that this material contained detailed explanation written by Dr. Graham of the care that he gave to Jessie Hurlburt and statement from the Saskatchewan College of Physicians and Surgeons about why they found that he had done nothing wrong. Ms. Purdy chose to use very little of this information in the December article and by choosing to do so, Mr. Miller felt her story became very one sided. [179] Mr. Miller felt that the reporter did slipshod investigation, the newspaper rushed this to print and by doing so vitiated any claim of responsible reporting. If the paper was going to publish this article they should have spoken to all the people and their doctors, followed up and documented any complaints made to the respective Colleges of Physicians and Surgeons, had medical professionals corroborate or explain the complaints and most importantly, talked to Dr. Graham to get his explanation of these complaints. Nothing like that occurred and as such, reasonably intelligent reader looking at this December story might ask if the newspaper was implying that the jury in the Baert trial was wrong. [180] Mr. Miller was adamant that where there are accusations or implied criticisms of any person or institution, there must always be rigorous attempt to obtain response before publication and the response should be contained in the original story. He noted that not only was there no attempt to get Dr. Graham’s side of the story in the November 28, 29 and December articles aforementioned but there was also no attempt to do so in the second November 29 article and the November 30 article. [181] In Mr. Miller’s opinion, the November 28, 29 and December articles written by Ms. Purdy fell short of journalism’s recognized professional standards of care and her editors did not exercise ongoing oversight to ensure that her information was verified and her reports were handled responsibly. [182] The defendants’ expert, Patricia Bell, was also eminently qualified. Ms. Bell graduated in 1963 with an honour’s degree in journalism from the University of Western Ontario. She worked for the Globe and Mail travelling Asia writing stories about social and medical issues and later as freelance reporter. In 1983, she joined the Ottawa Citizen newspaper, writing education pieces and later moved to their editorial board. In 1999 she moved to Regina and became an assistant professor at the University of Regina, School of Journalism. Later she became the head of the School of Journalism and continues to teach there today. With the consent of Dr. Graham’s counsel, Ms. Bell was qualified as an expert in the area of journalism. [183] Ms. Bell testified that journalist’s professional responsibility is to tell stories that matter. In that regard, they should try to get as complete story as possible, relying on more than one source so the story does not rely on single perspective. Stories need to be verified, balanced and as complete as possible, presented with sufficient facts, details and explanations to allow readers to draw their own conclusions. Where there are accusations or implied criticisms of any person or institution there must always be rigorous attempt to obtain response before publication and the response should be contained in the original story. [184] Ms. Bell was familiar with the Canadian Association of Journalists. The Association has very comprehensive code of ethics that she subscribed to and believed in. She acknowledged that accuracy was the moral imperative of journalists and news organizations and should not be compromised even by deadlines. She said that it was the journalist’s responsibility to seek documentation, to support the reliability of sources and to be careful to distinguish between sources and fact. The onus was on the journalist to verify all information despite deadlines. [185] She also agreed that the code of ethics spoke of fairness. She explained that journalists must give people, organizations or companies that are publicly accused or criticized an opportunity to respond before publishing those accusations or criticisms. Journalists must make genuine and reasonable effort to contact them and if they decline to comment, they must say so. [186] Ms. Bell reviewed Ms. Purdy’s articles in the Baert case dated November 24, 28, 29 (two articles), 30, December 1, 2007 and January 3, 2008 and Ms. Purdy’s notebooks. It was Ms. Bell’s opinion that the November 28, 2007 article took into consideration the seriousness of the allegation, the public importance of the matter, the urgency of the matter and the status and reliability of the source. However, she felt that the main emphasis of this story should have been that the verdict came down and the jury found Dr. Graham not negligent. She said the article did not give sufficient coverage to the jury’s decision that Dr. Graham was not negligent in performing Lisa Baert’s tubal ligation. There was no mention in the story of the particular questions the judge asked the jury to consider and on which they based their decision. There was also no mention about either party’s reaction to the jury’s decision. This was imperative in her view. There was no indication if Ms. Purdy sought these reactions at all or was simply unable to get response. In her opinion, this article was not complete and readers were left without enough information to consider whether they thought the jury got it right. [187] Instead, she felt that Ms. Purdy took the first opportunity after the trial to tell people about the other complaints about Dr. Graham that she became aware of. Ms. Bell found it disturbing that the verdict and these other complaints were not two separate stories. Even then, there was no indication that Ms. Purdy tried to get the other side of the complaints in the article. Ms. Bell felt that she should have been persistent in trying to get Dr. Graham’s version of these complaints. [188] Ms. Bell said that the November 29 article entitled “Gynecologist Not Negligent: Punctured Bowel Led to Brain Damage” was fuller reporting of the November 28, 2007 website article and not simply reprinting of it. By way of example, she said that this story included information that Mark Baert did not speak to reporters after the jury’s verdict and that Dr. Graham was not present in the courtroom and his lawyer said he was busy with personal matters. For these reasons she felt that this story was more useful to readers than the November 28 story. [189] With all due respect to Ms. Bell, have carefully reviewed the copies of the November 28 website article, the November 29 website printout of the article and the November 29 newspaper article entered as exhibits in the trial and they are all identical in content. There is nothing different in any of these three documents with the exception of the byline in the November 28 article. Otherwise, the text of these three documents is the same. That being said, cannot give any weight to her conclusion that the November 29 article is better written and more useful to readers than the November 28 article. [190] Putting aside this problem with her testimony, she does acknowledge that this November 29 article is still missing detail about the judge’s charge to the jury that would allow readers to understand exactly what they were being asked to consider in deciding whether Dr. Graham was negligent or not. She also admits that there is nothing indicating whether or not Dr. Graham’s comments about the decision or about the further allegations being made against him were sought. [191] Ms. Bell testified that the December 1, 2007 story was an attempt by the newspaper to bring information to the public that they needed to know. During the Baert case, Ms. Purdy found out about other complaints involving Dr. Graham and she determined that there was another story to be written. In her report, Ms. Bell said that it appeared that the publisher was diligent in trying to verify these allegations having regard to the seriousness of the allegations, the public importance of the matter, the urgency of the matter and the status and reliability of the sources. However, Ms. Bell then opined that this story did not have to come out this quickly. News is perishable commodity so if story needs to be investigated and checked, you do it as quickly as possible. But here, the information about these stories was not “perishable news”. The perishable element was only how they relate to the Baert case. As result, Ms. Bell said that Ms. Purdy should have done more work and provided more comprehensive story. What is not in this article is an explanation from Dr. Graham about what happened in these other cases. diligent reporter would report on what occurred in court, would seek out professionals to explain things they did not understand, including legal help to assist them to understand legal issues. If reporter did not accurately report on factual or legal issue and left the reader with the wrong impression, this would not meet the standards of journalism. [192] Although her report was to the contrary, Ms. Bell agreed in cross-examination that the inclusion of these other complaints in this article left the reader thinking that the jury in the Baert case got the decision wrong. The article tells readers that the jury was not allowed to hear from these other patients but what it fails to do, according to Ms. Bell, and what Ms. Purdy had duty to tell the reader, was that these other people were only being called to talk about “informed consent” and not about their surgical complications. [193] Ms. Bell ultimately reached number of conclusions. Firstly, that there was not stand-alone news story about the jury’s decision in the Baert case with sufficient information that would allow reader to make their own determination as to whether the jury reached the proper decision. [194] Secondly, there was no response from Dr. Graham in any of the articles dated November 28, 29, 30 and December 1, 2007. The reader was not told whether this was because no attempts were made to obtain his response or whether requests for response were denied. As such, the requirement of responsible communication was not met in any of these articles. [195] Thirdly, while she felt there were some gaps in the overall coverage of the court case and the jury’s decision, it did not appear to her that they were planned in order to subvert objectivity and truth in reporting. The reality of today’s newspapers is that getting stories up on the paper’s website has become the priority before considering how they would appear in the following day’s newspaper. The size of newsrooms is eroding and the opportunities were rare for editors to stop and consider the big picture of how court case might be covered and delivered in substantial and balanced way. Given the strained economies of today’s newspapers, she felt that the overall coverage of the Baert trial was sufficient, objective and balanced and reflected attention paid by Ms. Purdy to the seriousness, public importance and urgency of the issues as well as the status and reliability of the sources. [196] turn now to the issue of general damages. Dr. Graham had been medical doctor specializing in obstetrics and gynecology. In 2003 he had serious heart attack that required quintuple bypass surgery. He was also suffering from some depression. As result of these issues, sometime in the latter part of 2003 he retired from the practice of medicine and settled in St. Albert, Alberta. [197] In 2007, his oldest son committed suicide. Shortly thereafter his wife died of cancer. In September 2007, the Lisa Baert claim against Dr. Graham went to trial. Understandably, at the time of trial he was grieving and depressed. On November 28, 2007 jury found Dr. Graham not negligent for the devastating injuries suffered by Ms. Baert. [198] Ms. Purdy, the Star Phoenix reporter who had been covering the trial, wrote series of five articles between November 28, 2007 and December 1, 2007 containing defamatory comments about Dr. Graham. These articles were published within week of the verdict: November 28, 29 (two articles), 30 and December 1, 2007. Defendants’ counsel admitted that these five articles contained defamatory comments about Dr. Graham, although not to the extent that eventually determined. All of these five articles, save for the November 28 article, appeared in the Star Phoenix newspaper and on the Star Phoenix websites. The November 28 article only appeared on the Star Phoenix websites. [199] Generally speaking, the defamatory meaning of the words complained of in these articles were that Dr. Graham had negligently performed surgery on Lisa Baert, Gloria Cooke, Dana McLellan, Sharry Michels, Jessie Hurlburt, Marleen Burgess and Lynn Laursen and had nearly caused some of them death and all of them some specific injury. In some of the articles, the defamatory meaning of the words complained of were that Dr. Graham had failed to advise Ms. Baert or the attendant nurses that he had punctured Ms. Baert’s bowel, that he did not properly advise Ms. Baert of the risks of tubal ligation surgery thereby not getting her informed consent, that the jury’s verdict exonerating him of negligence for the Lisa Baert injuries was wrong or perverse, that he misrepresented to Marleen Burgess that he had performed complete hysterectomy on her and that he was habitually negligent in his surgical practice. [200] Defamatory comments regarding Dr. Graham’s negligent surgical treatment of Ms. Baert appeared in all five articles written by Ms. Purdy. Defamatory comments regarding his surgical treatment of Gloria Cooke appeared in four of the articles, and of his surgical treatment of the rest of the named individuals, in one of the articles. The defamatory meaning that Dr. Graham was habitually negligent in his surgical practice and that the jury’s verdict exonerating him was wrong was repeated in two articles. No retraction or apology from the Star Phoenix has been published or forthcoming to date. [201] There was no direct evidence before me as to how many households get the Star Phoenix newspaper, the extent of their readership base, how many people visit their websites to read the news or how many people viewed the impugned articles on the websites or downloaded them. was however advised that all five of these articles remain on the Star Phoenix websites and are accessible to whoever wants to view them. [202] From the outset of the Baerts’ claim, Dr. Graham denied liability. The jury’s verdict in the case was vindication for him but the euphoria of that vindication was short lived. While having celebratory supper with his children the night the verdict came down, they came across the November 28 article on the Star Phoenix website. When Dr. Graham read the article, he was shocked, appalled and depressed. The byline referred to the Baert case but the article talked mainly about the complaints Gloria Cooke had made about him. He felt that the article contained number of factual inaccuracies, that it implied that his medical licence should have been revoked and made it appear that he was lucky to have been exonerated by the jury in the Baert case. [203] Every day that new article was published, Dr. Graham read it and continued to be shocked, appalled, dismayed and depressed by them. He was particularly upset after reading the December article as he felt it was full of untruths. What was particularly troubling to him was that at no point in time, either before or after any of these articles were published, did anyone from the Star Phoenix ever try to contact him to get his comment on the verdict or the allegations these other people were making about him. He also found it upsetting that the articles did not report that he had been cleared of any wrongdoing as regards number of these patients. number of these people had made complaints to either the Saskatchewan or British Columbia Colleges of Physicians and Surgeons and in every instance, it was determined that he was not negligent. However, this and the fact that he had been found not liable in the Baert case was either not reported in the articles or very little was ever said about it. [204] Defendants’ counsel made point of arguing that Dr. Graham had bad reputation at the time the defamatory comments were made about him in 2007. Dr. Graham admitted that in 2002 and 2003 after people in Dawson Creek found out about the Baert case, complaints about his treatment of patients began occurring. He said that his reputation in Dawson Creek at this time was bad because of all the media hype. But he was investigated by different professional bodies and it was never determined that he did anything wrong. Then he had his own health issues and retired. In this context, do not accept that Dr. Graham had bad reputation in 2007 when Ms. Purdy wrote her articles defaming him. [205] Dr. Graham’s children noticed change in their father over time. Two of his sons testified that the articles bothered him for days and weeks at time, that he was not himself and he became preoccupied with the articles. Dr. Graham said that he was depressed, not eating or sleeping properly and was having problems concentrating. Over time, these problems lessened but he said that he still has problems sleeping and concentrating today. [206] Both parties called expert witnesses in this case. Both experts were eminently qualified journalists in their own right. Both Mr. Miller and Ms. Bell agreed on number of points including that some of the articles written by Ms. Purdy fell short of meeting journalism’s recognized professional standards of care. However where the experts differ, prefer Mr. Miller’s testimony over that of Ms. Bell. There was an instance where Ms. Bell’s opinion was not based on the evidence before me. She described reading an article written by Ms. Purdy on November 29 that she said was almost identical to the article Ms. Purdy wrote on November 28. She indicated that this November 29 article contained more fulsome facts that affected her view on how well the article was written. However, there was no difference in content between the two articles. have no idea what Ms. Bell reviewed or what she was referring to. [207] In her written report filed as an exhibit in the proceedings, Ms. Bell goes through the articles in question. Despite acknowledging that there was no indication that Ms. Purdy made any attempt to contact Dr. Graham and get his side of the story in any of the articles in question, she still concluded that Ms. Purdy’s overall coverage of the case was sufficient, objective and balanced. cannot accept this. For reasons which will discuss more fully under the heading of aggravated damages, am unable to accept that the articles written by Ms. Purdy between November 28, 2007 and January 3, 2008 were sufficient, objective and balanced. [208] As consider what is an appropriate award for general damages in this case, am also surprised at the lack of editorial oversight of Ms. Purdy’s articles. Ms. Purdy’s immediate editor, the managing editor, the editor-in-chief and the general manager and publisher of the newspaper either disavowed having any role in overseeing Ms. Purdy or had no recollection of discussing these articles with Ms. Purdy or between themselves, reviewing these articles and offering any criticism, direction or instruction about them or authorizing her to pursue the other complaints made about Dr. Graham. This, despite evidence that the editors would get together daily to talk about stories that were being written by their reporters. [209] Taking all these factors into account I conclude that an award of $50,000 for general damages would be appropriate. [210] There is no question in this case that the series of articles written by Ms. Purdy increased Dr. Graham’s mental distress. He had just been vindicated in lengthy trial and that was taken away from him almost immediately. The articles made him mad, dismayed, indignant and depressed. He felt that the reporter was suggesting that the jury was wrong and he was negligent obstetrician/gynecologist. If aggravated damages are to be awarded in this instance, I must be satisfied that the defendants were motivated by actual or express malice. [211] Ms. Purdy testified that she agreed with the jury’s finding that Dr. Graham was not negligent in his treatment of Lisa Baert and that the jury’s verdict was fair. do not accept her testimony in this regard. All of the articles complained of by Dr. Graham were written the day the verdict came down or thereafter. The first two articles he complains of are identical. One was written by Ms. Purdy on November 28, 2007, the day of the jury’s verdict and the other article was written the next day. Both Mr. Miller and Ms. Bell agreed that the purpose of these articles should have been to report the jury’s verdict that Dr. Graham was not negligent in performing Lisa Baert’s tubal ligation. Such story should have summarized the key testimony presented at the trial, what particular questions the judge asked the jury to consider and what evidence or factors may have caused the jury to decide as they did. If Ms. Purdy was satisfied that the jury had reached the correct decision, would have expected that she would have focussed more on the verdict in the trial. [212] These stories did none of that. What these stories did was introduce details about two other cases involving Dr. Graham. The first four paragraphs of the story talk about Gloria Cooke. As Mr. Miller opined, the reporter and/or her editors felt this information was more important than the verdict. So instead of straightforward, contemporaneous and even-handed account of the jury’s verdict, less than half of these articles had to do with information presented at the trial. [213] The stories involving Gloria Cooke and Dana McLellan were legitimate stories but again, both experts agree that these stories should have been undertaken separate from story about the jury’s verdict. Moreover, Ms. Purdy included this information about Ms. Cooke and Ms. McLellan in both these articles without having ever spoken to either of them directly. She obtained her information from speaking to Ms. Cooke’s lawyer and reading dated newspaper article about Ms. McLellan. She did nothing to verify this information, she made no attempt to speak to Ms. Cooke or Ms. McLellan’s medical doctors or get their medical records. Most troublesome was that Ms. Purdy made no attempt to speak to Dr. Graham to get his comment on the verdict or on the allegations made by Ms. Cooke and Ms. McLellan. By focusing on the Cooke and McLellan cases so soon after the verdict, Ms. Purdy is drawing attention to them. By not properly reporting on the verdict, she leaves the impression that the jury got it wrong in both these articles. [214] Every one of the five articles after the verdict contains words whose defamatory meaning was that Dr. Graham negligently performed surgery on Lisa Baert thereby causing her certain injuries that included septic shock, amputation, cardiac arrest, severe brain damage, living in long-term care home and becoming quadriplegic. If Ms. Purdy honestly believed that the jury had made the right decision, then there would be no reason to keep repeating these words, phrases and paragraphs day after day in such way that they were defamatory. [215] The November 30, 2007 article is follow-up reporting. In this article, Ms. Purdy focuses on getting the Baerts’ reaction to the jury’s decision. But neither Ms. Purdy nor any other Star Phoenix reporter did follow-up story on Dr. Graham’s reaction to the jury’s verdict. In Mr. Miller’s view, writing this article increased the newspaper’s obligation to report on Dr. Graham’s reaction otherwise this could be considered an “implied taking of sides”. [216] Moreover, if this was just follow-up article about the Baerts’ reaction to the verdict then have to wonder why Ms. Purdy felt she had to repeat the Gloria Cooke information in the story. That information had nothing to do with the Baerts’ reaction to the verdict. It had everything to do with being critical of Dr. Graham and again suggesting that the jury got it wrong. [217] The December 1, 2007 article reinforces my conclusion that Ms. Purdy felt that the jury was wrong in their verdict. Both experts again admit that this article did not have to run immediately after the trial and that Ms. Purdy should have taken more time to investigate the allegations made by these five other people properly and to verify their information. She did not do that. She did not speak to any medical professionals to verify the information these people gave her. She did not ask for these people’s medical records or for permission to speak to their doctors. She received some documents from Ms. Hurlburt’s son that included letter from Dr. Graham explaining his treatment of Ms. Hurlburt and letter from the Saskatchewan College of Physicians and Surgeons advising that Dr. Graham was not negligent in his treatment of Ms. Hurlburt and the reasons why. Despite having this information, Ms. Purdy never included it in the report. Instead, she simply noted that the investigation found “no medical mismanagement” by Dr. Graham. [218] This particular article contains five people’s complaints about Dr. Graham’s treatment of them in addition to the information about what happened to Ms. Baert. Yet again, Ms. Purdy made absolutely no effort to elicit response or comment from Dr. Graham in relation to these complaints. Reading this series of articles culminating in this December article leads to no other conclusion than that the jury was wrong to find Dr. Graham not negligent in his surgical treatment of Ms. Baert. [219] Ms. Purdy described herself as diligent journalist. She acknowledged being familiar with the journalistic standards of care and specifically those standards referencing accuracy and fairness. Yet she wrote five articles, four of which contained single source, unverified information about complaints made against Dr. Graham by other people and not once did she ever try to contact Dr. Graham to get his side of the story. This is contrary to the concepts of accuracy and fairness which Ms. Purdy said that she was aware of. The very fact that she failed to give Dr. Graham an opportunity to defend himself against these defamatory allegations is, in and of itself, evidence of malice. In Leenen at para. 145, Cunningham J. said: [145] The failure of the defendant to provide the plaintiff with fair opportunity to defend himself against defamatory allegations is evidence of malice: Hodgson v. Canadian Newspaper Co., supra. As Holland J. stated in Munro v. Toronto Sun Publishing Corp. (1982), 1982 CanLII 1758 (ON SC), 39 O.R. (2d) 100 at p. 118, 21 C.C.L.T. 261 (H.C.J.): when the story is prepared and the paper has the "goods" on the person targeted in the story it is basic and necessary that that person be confronted with the story so that his reaction be obtained. [220] However, I am additionally led to the inescapable conclusion that Ms. Purdy did not believe that the jury had reached the proper verdict in the Baert case. Rather than properly reporting on the jury’s verdict, Ms. Purdy deliberately chose to report on other people who had made complaints about the surgical care Dr. Graham provided them. She did so without verifying this information or even seeking Dr. Graham’s comment. Given her lack of proper investigation or verification of these complaints, she could not have reasonably believed that these complaints were true. By writing the articles that she did in the time frame that she did and in the fashion that she did, she could only have had one purpose in mind and that was to tell readers that Dr. Graham was negligent in his surgical practice and that the jury’s verdict was wrong. I am satisfied that Ms. Purdy published the words complained of by Dr. Graham with reckless indifference as to their truth and as such, malice has been made out. [221] Where an employee is acting in the course of his or her employment, any malice motivating his or her behaviour will be attributed to his or her employer. See Sun Life Assurance Co. of Canada Dalrymple, 1965 CanLII (SCC), [1965] SCR 302. Ms. Purdy was an employee of the Star Phoenix overseen by Rod Nickel, Cameron Hutchinson, Steven Gibb and Dale Brin and as such, her malice is attributed to all of them. [222] In my view, given these findings, an award of $50,000 for aggravated damages is appropriate. (d) Is Dr. Graham entitled to an injunction requiring the defendants to remove certain content from websites under their control? [223] In Astley Verdun, 2011 ONSC 3651 (CanLII), Chapnik J. said: [20] It is well-settled law that, in appropriate circumstances, court may grant an injunction to prevent defendant from continuing to disseminate defamatory material that affects plaintiff's reputation: see, for example, Barrick Gold Corp. v. Lopehandia (2004), 2004 CanLII 12938 (ON CA), 71 O.R. (3d) 416, [2004] O.J. No. 2329 (C.A.), at paras. [21] Permanent injunctions have consistently been ordered after findings of defamation where either (1) there is likelihood that the defendant will continue to publish defamatory statements despite the finding that he is liable to the plaintiff for defamation; or (2) there is real possibility that the plaintiff will not receive any compensation, given that enforcement against the defendant of any damage award may not be possible: see Hunter Dickinson Inc. v. Butler, [2010] B.C.J. No. 1332, 2010 BCSC 939 (CanLII), at paras. 75-79; Griffin v. Sullivan, [2008] B.C.J. No. 1333, 2008 BCSC 827 (CanLII), at paras. 119-27; Newman v. Halstead, [2006] B.C.J. No. 59, 2006 BCSC 65 (CanLII) at paras. 297-301; Cragg v. Stephens, [2010] B.C.J. No. 1641, 2010 BCSC 1177 (CanLII), at paras. 34-35, 40. [224] In the present case almost years have gone by since the defamatory articles in question were published by the Star Phoenix. Dr. Graham is retired, Ms. Baert has, unfortunately, deceased, none of the individual defendants remain employed with the Star Phoenix and the newspaper has been purchased by Postmedia Network Inc. There is no evidence before me that would lead me to conclude that in light of my decision, the defendants will continue to publish defamatory statements about Dr. Graham. There is also no reason for me to believe that there is real possibility that Dr. Graham will not be able to collect his damage award from the defendants. Injunctive relief is an exceptional remedy that will not be imposed by the courts lightly. As such, am not convinced that it is appropriate to grant an injunction in these circumstances and Dr. Graham’s request in this regard is dismissed. [225] Postmedia Network Inc. will be added as defendant in this case. The defendants have jointly and severally defamed Dr. Graham in series of articles written by Chris Purdy and published in the Star Phoenix newspaper and on its websites between November 28, 2007 and December 1, 2007. Dr. Graham is awarded general damages in the amount of $50,000 and aggravated damages in the amount of $50,000 together with pre-judgment interest pursuant to s. 5(1) of The Pre-judgment Interest Act, SS 1984-85-86, c P-22.2, and costs taxed in the appropriate column. J. D.E. LABACH

HELD: The action was allowed. The defendants had defamed the plaintiff and he was entitled to damages in the amount of $100,000. The court found the following with respect to each issue: 1) it would substitute Postmedia as a defendant pursuant to Queen’s Bench rule 3-84(2) as it was the successor to Canwest and was aware of the plaintiff’s claim when it purchased the Star Phoenix and it would not be prejudiced. It would not deprive Postmedia of a defence under s. 5 of The Limitations Act because the articles remained on Postmedia’s websites and were republished whenever they were viewed or downloaded; 2) after reviewing each of the articles and assessing the words complained of, it found that the words constituted defamation; 3) all of the defendants were found to be joint tortfeasors with Purdy because they participated in the publication of a libel and were jointly and severally liable in defamation to the plaintiff; and 3) an appropriate award for general damages was $50,000. The court allowed the claim for aggravated damages as the defendants were found to be motivated by actual or express malice because Purdy did not simply report the jury’s verdict in her articles but indicated that she believed that the jury had not reached the proper verdict in the trial. She deliberately chose to report the stories of people who had made complaints about the surgical care provided to them by the plaintiff without verifying it or seeking comment from the plaintiff. As she was acting in the course of her employment, Purdy’s malice was attributed to all the defendants. The plaintiff was awarded $50,000 in aggravated damages.

d_2017skqb42.txt

J. Q.B. A.D. 1996 No. 11 J.C.B. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF BATTLEFORD BETWEEN: HER MAJESTY THE QUEEN and BRUCE ALBERT MORIN and DENNIS DAIGNEAULT RESPONDENTS and THE METIS NATION OF SASKATCHEWAN and THE METIS NATIONAL COUNCIL PROPOSED INTERVENERS P.M. McAdam for the appellant C. Chartier and J. Teillet for the respondents F. Kovach for the proposed interveners JUDGMENT LAING J. September 8, 1997 The Crown appeals the acquittal of the respondents following trial in Provincial Court on three charges related to fishing, in contravention of the Saskatchewan Fishery Regulations passed pursuant to the Fisheries Act, R.S.C. 1985, c. F-14. Each accused was separately charged with six offences arising out of fishing activities on two lakes in northwestern Saskatchewan on December 1, 1993. The charges 1. On or about December 1, 1993, at Moberly Lake did engage in fishing by means of net without licence. In violation of Section 26(a) of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F-14, S.1. 2. On or about December 1, 1993, at Moberly Lake did place net in that body of water during closed season. In violation of Section 26(e) of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F-14, S.1. 3. On or about December 1, 1993, at Moberly Lake did fail to properly mark nets. In violation of Section 27 of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F- 4. On or about December 1, 1993, at Un- named Lake (NL 56� 41' WL 108� 15') did engage in fishing by means of net without licence. In violation of Section 26(a) of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F-14, S.1. 5. On or about December 1, 1993, at Un- named Lake (NL 56� 41' WL 108� 15') did place net in that body of water during closed time. In violation of Section 26(e) of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F-14, S.1. 6. On or about December 1, 1993, at Moberly Lake and Un-named Lake (NL 56� 41' WL 108� 15') did engage in fishing using gill net having mesh size smaller than specified in violation of Section 29(1) of the Saskatchewan Fisheries Regulations made pursuant to the Fisheries Act R.S.C., C.F-14, S.1. The respondents are Metis and reside at reasonably isolated Metis community named Turnor Lake in northwestern Saskatchewan. At trial, counsel acting for the respondents advanced standard criminal law defences to the charges, and also constitutional defence that the respondents as Metis had an aboriginal right to fish which the Saskatchewan Fishery Regulations infringed. The trial judge found the accused notguilty on counts 1, 2 and 6, supra, based on the standarddefences. He found he would have convicted the accused oncounts 3, 4 and 5 but for the constitutional defence which hefound to be established. It is the acquittals based on theconstitutional defence that are the subject of this Crownappeal. The appellant\'s notice of appeal sets out sixgrounds as follows:1. That the learned Trial Judge erred inlaw by failing to distinguish between anAboriginal right to fish for food and anAboriginal right to fish for commercialpurposes;2. That the learned Trial judge erred byfailing to hold that the Accused wereengaged in commercial fishing;3. That the learned Trial Judge erred inlaw by failing to hold that neither theAccused nor any of their ancestors at anytime possessed an Aboriginal right to fishfor commercial purposes;4. That the learned Trial Judge erred inlaw by concluding that the scrip issued toMetis pursuant to section 6(f) of theDominion Lands Act, R.S.C. 1906, c. 55 andOrder-in-Council P.C. 1459 did notextinguish any Aboriginal right to fishfor food or commercial purposes possessedby the Metis;5. That the learned Trial Judge erred inlaw by failing to conclude that therequirement to obtain a licence beforeengaging in fishing by means of a net setout in section 26(a) of the SaskatchewanFishery Regulations does not constitute aprima facie infringement of any existingAboriginal right to fish for food orcommercial purposes possessed by theAccused;6. The learned Trial Judge erred in law byacquitting the Accused on the charge undersection 27 of the Saskatchewan FisheryRegulations when neither the Aboriginalrights defence nor the equality rightsdefence had any application to the charge. Following service of the notice of appeal, The Metis Nation of Saskatchewan, and The Metis National Council, applied for intervener status on the appeal which was granted by order of this Court dated December 13, 1996 on the basis that the interveners would: be permitted to make oral arguments before the court on the appeal and to respond to presentations made by the appellant Crown, provided that such responses do not merely result in duplication of the arguments or presentations of the respondents. GROUNDS OF APPEAL 1, 2, AND The first three grounds of appeal take issue with the fact the trial judge declined to make finding that the respondents were engaged in commercial fishing. It is the position of the Crown that the respondents were in fact fishing for commercial purposes, and therefore their claim that the fishing Regulations in question infringed their aboriginal right to engage in this activity, must be judged on the basis of whether or not the respondents established an aboriginal right to fish for commercial purposes, as opposed to fishing for food only. This position of the Crown raises two issues: 1. Based on communications between counsel prior to trial, was the trial judge entitled to preclude the Crown from arguing that the fishing engaged in by the accused was for commercial purposes? 2. In any event was the proper characterization of the aboriginal right one of fishing for food, because the offences with which the accused were charged did not relate to commercial fishing, but applied whether the fishing was for domestic consumption or for commercial purposes? It is to be noted the notice of appeal does not take issue with the trial judge's finding that the respondents established on the evidence an aboriginal right to fish for food. Rather, the appeal on this point, is limited to the argument that such right was extinguished (appeal ground 4), and in any event the regulations are justified (appeal ground Background Counsel for the accused made it known to the Crown from the outset, that while traditional defences to the charges brought against the accused would be advanced, the accused would also be offering constitutional defence in which they claimed their aboriginal right to fish was infringed by the Saskatchewan Fishery Regulations. The Fishery Regulations relevant to the acquittals of the respondents on counts 3, and are as follows: 26. No person shall (a) engage in fishing by means of net, set line or trap unless he holds licence authorizing such fishing; (e) place net, set line, trap or running line in any body of water during the closed time for that water. (1) Every person who uses net or set of nets for fishing shall mark, in the case of an individual net, each end of the net or, in the case of set of nets, the outermost extremity of each end of the set, by (a) buoy surmounted by flag, the top of which is at least one metre above the surface of the water, where the net or set of nets are used for open water fishing; or (b) stake, the top of which is at least one metre above the surface of the ice, where the net or set of nets are used for fishing through iced-covered water. (2) person who uses buoy or stake referred to in subsection (1) shall have legibly marked thereon at all times the number of his licence in such manner that the number is readily visible. It will be noted the foregoing Regulations apply whether the fishing in question is for commercial or domestic purposes. Under the Regulations, fishing for domestic purposes is distinguished from angling. The Regulations provide the following definitions in s. 2: "domestic fishing" means fishing for or catching fish solely for the personal use of the person fishing for or catching the fish or his immediate family but does not include sport fishing; "Indian fishing" means domestic fishing by an Indian; "Indian" has the same meaning as the Indian Act. Regulation 28 at the time provided: 28. No person shall engage in commercial fishing unless that person is the holder of licence issued for such purpose. The Regulations under the heading "Domestic and Indian Fishing" included: 37.(1) No person shall engage in domestic fishing or Indian fishing unless that person is the holder of licence issued for such purpose. (2) Notwithstanding subsection (1), an Indian may engage in Indian fishing by means of angling without licence. 38.(1) No person engaged in domestic or Indian fishing shall (a) use more than 100 of gill net or more fishing gear than the fishing gear specified in that person's licence; (b) dispose of any fish caught while engaged in such fishing to any person other than member of his immediate family; (c) subject to subsection (3), have in his possession at any time more than 50 kg of fish caught while engaged in such fishing; or Prior to trial, pre-trial conference was held on July 15, 1994, before judge who was not the trial judge, at which time the manner of proceeding at trial was reviewed. The pre-trial judge made detailed notes of this conference. He noted in part as follows: There was discussion as to whether, in fact, the Crown's case includes an allegation of commercial fishing, since if it does not, several of Mr. Chartier's arguments may not be necessary. Mr. McAdam indicated that he and Mr. Campbell will advise Mr. Chartier in timely manner as to whether he must meet an allegation of commercial fishing, so that Mr. Chartier can prepare his Notice under the Constitutional Questions Act. For his part, Mr. Chartier indicated that he would give such notice in as timely manner as possible. Following the pre-trial conference, Crown counsel in letter dated August 2, 1994 to defence counsel, advised as follows: Further to the discussions that we had at the pre-trial conference held on July 15th, am writing to confirm that it is our position that it is not necessary for the Crown to prove anything with respect to commercial fishing in order to make out all the charges against your clients. Therefore, from the Crown's perspective, commercial fishing is not an issue in this case. Of course, it is open to you to attempt to establish that your clients have an Aboriginal right to fish for commercial purposes as potential defence to the charges. Therefore, you may wish to make commercial fishing an issue. If you intend to do so, please let us know as soon as possible so that we may properly prepare. On August 23, 1994, counsel for the accused served notice of the constitutional question they intended to raise on behalf of the accused on the Attorney General. The notice identified their aboriginal right claimed in the following wording: My clients are Metis and will be relying on their Aboriginal right to fish as protected under the Constitution of Canada. More specifically, my clients will be relying on sections 91(24) and 146 of the Constitution Act, 1867, along with the Rupert's Land and North-Western Territory Order passed pursuant to s. 146. My clients will also be relying on s. 35 of the Constitution Act, 1982, as well as paragraph 12 of the Constitution Act, 1930. At trial, the accused called evidence from Elders of the Metis community in northwestern Saskatchewan (the trial judgment stated the decision ". will cover the area loosely known as Treaty 10 or perhaps little larger"), witness who had conducted interviews with number of Elders in the area over period of time, and expert evidence from Professor Frank Tough, Associate Professor with the Department of Native Studies at the University of Saskatchewan. The accused also testified on their own behalf. The accused admitted to being commercial fishermen. The accused had ten nets out at the time the nets were seized, eight on Moberly Lake and two on Un-named Lake. At one set of three nets on Moberly Lake, substantial number of tubs of fish were removed from the nets at the time of seizure. The two nets on Un-named Lake also contained fish at the time of seizure. The accused Morin was questioned as to what he might have done with the fish if the nets had not been confiscated. The following testimony was given by Mr. Morin: At p. 89: 23 Q. What do you do for living? A. Fish. Q. Okay. Anything else? At p. 90: 25 Q. But you said for living you fish; that's correct? At p. 101: 16 Q. Okay. Now, if you had caught fish at Fox Lake that time, what was your what were you going to do with those fish? A. What was going to do with them? A. probably would have sold some of them, gave some away. Earlier in his testimony at p. 91, the accused had indicated he and his family eat some of the fish that he catches. At p. 91 the following questions and answers appear: 10 Q. No. Do you and your family eat the fish that you catch? Q. Yeah. Do you eat fish lot? A. Most of the time, yeah. Q. Do you ever share any of the fish that A. Yeah. On cross-examination, Mr. Morin was asked: 17 Q. Now, what were you guys going to do with the fish that were caught? Were you going to sell those fish? A. Yeah. Q. Okay. Now, who was going to sell the A. What do you mean, who was going to sell it? Q. Well, were you going to sell the fish or sell some of the fish? A. was going to sell some of it, yeah. Q. Okay. And A. Me or my dad or Dennis, one of us was going to come and sell it. Oh, okay. So you might well sell some, Dennis might sell some, and your dad might A. You sell everything at one time not just sell two, three fish there and then go sell another two, three someplace else. You sell them all at one time. Q. Okay. How many fish did you expect to A. don't know. A. didn't expect anything. just was trying. The accused, Daigneault, was not specifically asked in his testimony what he intended to do with any fish that might have been caught. At p. 160 of the transcript, Mr. Daigneault was questioned as follows: 12 Q. No? How long have you been fishing? think you said in response to one of Mr. Chartier's questions that you'd been fishing since you were teenager. think you said. A. Quite awhile anyway. Q. Yeah. More than ten years? Q. Yeah. And take it you've been commercial fisherman during that time. You've been selling fish. Yeah. Earlier in his testimony-in-chief, Mr. Daigneault indicated he and his family eat some of the fish that he catches as well and that they also share some with family and friends. At p. 142, the following questions and answers appear: 23Q.Do you and your family eat the fish, some of the fish that you catch? A. Mhmm, yeah. Q. Yeah. Do you ever share any of that fish that you catch? A. Yes. Q. With who? A. Family, friends. Mr. Daigneault was commercial fisherman at the time of the charges laid in this matter. At p. 169 of the transcript, the following questions and answers appear: Q. Okay. After you left school in Grade 8, what did you do? Did you go out and A. went fishing. Q. With your dad or on your own? A. With my dad. Q. And take it that that was he was catching fish and selling them and you were helping him out. Q. Okay. How long did you do that? A. Quite awhile, about ten years. Q. About ten years. Did you have any other jobs sort of off and on? A. Yeah, did. Q. What kind of jobs? A. Work on housing. Fire during the Q. Yeah. think you said that right now you're working for Home Care? Q. Yeah. How long have you been working A. Three weeks. Q. For three weeks. What were you doing just before that? A. was drawing U.I.C. Q. Drawing U.I.C. What had you been doing before that to qualify for U.I.C.? A. Fishing. Q. You had been fishing. So when you're fishing, you can pay into U.I.C. A. Yes. Q. Yeah. When you're commercially fishing, is that something that goes year round, or is that just in the winter? A. Just in the winter now. Q. Yeah. Just in the winter now? Q. Do some people commercially fish in the A. They did before. Q. Yeah. But they don't anymore. A. No, they close the lakes during the summer. Following conclusion of the evidence, the trial was adjourned to allow the parties to submit written argument. Upon receipt of the Crown's brief, defence counsel became aware that the Crown was arguing that as the accused were in fact commercial fishermen and had admitted in their evidence at trial that they would have sold some of the fish if they had caught any in their nets, that the only aboriginal right the Court should consider was the aboriginal right to fish commercially. Following receipt of the Crown's brief, defence counsel wrote to Crown counsel in letter dated April 27, 1995, which is hereinafter set out in its entirety: am in receipt of your Brief of Law dated April 21, 1995. In your Brief on page you state the constitutional question as follows: "Did the non-Treaty or Metis of the Turnor Lake District of Northwestern Saskatchewan, at one time, have an Aboriginal right to fish for commercial purposes?" At no time since the pre-trial conference held in July 1994 has the defence considered this case to be about an "Aboriginal right to fish for commercial purposes". We have, since that pre-trail (sic) conference, at all times acted and presented our defence as being about an "Aboriginal right to fish for food." remind you that at the pre-trial conference, you stated that the Crown did not feel that fishing for commercial purposes would be an issue, and that the Crown was not considering pursing the commercial fishing aspects of this case. During that teleconference, Judge Nightingale specifically requested that you communicate your decision on this matter to the defence, so that the constitutional notice could be issued by the defence based on that decision. On August 2, 1994 you sent me letter in which you confirmed that the Crown had no intention of arguing the issue of commercial fishing. "I am writing to confirm that it is our position that it is not necessary for the Crown to prove anything with respect to commercial fishing in order to make out all the charges against your clients. Therefore, from the Crown's perspective, commercial fishing is not an issue in this case." While am aware that during the trial there was some mention made of the intention of one of the defendants (in examination in chief) regarding disposal of the fish caught while testing Fox Lake, there was never any attempt on the part of the defence to introduce evidence to substantiate an Aboriginal right to fish for commercial purposes. It is our position that you were well aware of this, in view of the pre-trial conference, your confirming letter and the defence evidence presented during the trial. We defended our clients at trial on the understanding that commercial fishing was not an issue in this case. We proceeded under this understanding only because you had assured us, in writing, that commercial fishing was not an issue. do not feel it is appropriate for the Crown to change the issues at this time and to argue in your Brief an issue which was not argued at trial. am writing this letter to request that you revise your Brief in light of the issue which was argued at trial: an Aboriginal right to fish for food. If you decline to do so will take the matter up with the Judge. would appreciate an immediate response since May 12th, our date set down for legal argument is approaching quickly. Defence counsel replied to the foregoing letter in letter dated May 3, 1995, wherein he stated as follows: am receipt (sic) of your letter of April 27th. In my view, the evidence at trial clearly established that your clients intended to sell any fish that they caught at Moberly Lake or Fox Lake. Therefore, they were engaged in commercial activity. The evidence, in my view, did not establish that they were hunting (sic) for food to feed themselves or their families. Therefore, an Aboriginal right to fish for commercial purposes is the issue. If you will refer to my letter of August 2nd, 1994, you will note that specifically said that "it is open for you to attempt to establish that your clients have an Aboriginal right to fish for commercial purposes as potential defence to the charges. Therefore, you may wish to make commercial fishing an issue" In my opinion, by the evidence that was given at trial by your clients, this is what you have done. If you wish to argue the case on the basis of an Aboriginal right to fish for food, that is your prerogative. However, it remains my position that it is the commercial right that is in issue and will be arguing the case on that basis. Following receipt of Crown counsel's letter, defence counsel wrote to the trial judge in letter dated May 4, 1995, the text of which follows: draw to your attention, conflict which has arisen in this case. As this conflict is fundamental to the determination of this case, feel that it should be dealt with in timely fashion. Specifically, based on the pretrail (sic) conference of July 1994 and letter of August 2, 1994 from the Crown to myself, the defence in this case has been solely based on an "Aboriginal right to fish for food". This continues to be reflected in our written argument. However, upon receipt of the Crown's written argument, we are now apprised of the change in the Crown's position. Basically, they are now approaching this case on the issue of an "Aboriginal right to fish for commercial purposes." While it cannot be denied that evidence of some aspects of commercial fishing were inevitable in this case, there was never any intention on the part of the defence to abandon its sole defence based on the issue of an "Aboriginal right to fish for food". The total effort of the defence was built around this defence. Clearly, the Crown has always known that the defendants were engaged in the commercial fishery and that this is not simply case where some completely unheard of evidence arose which changed the whole basis of the trial. This was clear from day one. While some of this evidence was allowed to come out at trial, we didn't think it would hurt our clients because of our reliance on the Crown's written assurance that this was not an issue. As consequence of the reliance on the Crown's written confirmation that commercial fishing was not an issue, no evidence was put forward to establish Metis right to fish for commercial purposes. One of the fundamental principles of justice dictates that persons charged with offences know what issues they are facing in order to prepare proper defence. We believe that this principle of justice has been breached in this case. We would appreciate an opportunity to resolve this conflict/issue before proceeding to closing argument. Depending on how this matter gets resolved, further adjournment may be necessary to prepare written argument based on totally new defence. It may also be necessary for us to request the re-opening of the trial so that evidence to establish an "Aboriginal right to fish for commercial purposes" may be introduced. Presumably as result of communication between counsel and the trial judge, defence counsel brought motion dated June 23, 1995, before the trial judge which motion requested: an Order under section 24(1) of the Charter of Rights and Freedoms directing the Crown to comply with his undertaking that the issue in the matter before the Court is as follows: Do the Metis of Northwestern Saskatchewan have an Aboriginal right to fish for food? AND FURTHER TAKE NOTICE that the grounds upon which this application is brought are as follows: a) Changing the constitutional question after the Defence has closed its case violates sections and 11(d) of the Charter of Rights and Freedoms. b) Breach of the Crown's undertaking and Defence reliance thereon violates sections and 11(d) of the Charter of Rights and Freedoms. In written decision dated August 14, 1995, but which was obviously delivered to the parties prior to that date, the trial judge dismissed the motion, and in doing so made the following observations: Having reviewed all the material before me and of course hearing the evidence at trial, am satisfied that the crown at no time, before filing their Brief in Argument, alleged the defendants were fishing commercially. As stated by counsel for the crown, there was no evidence upon which the crown could build case of commercial fishing. It then seems the question of commercial fishing was left open for the defense to bring up if so desired. As shown in Mr. McAdam's letter to Mr. Chartier dated August 2, 1994, and which may have been misinterpreted by the defense, quote in part "of course it's open to you to attempt to establish that your clients have an aboriginal right to fish for commercial purposes as potential defense to the charges. Therefore, you may wish to make commercial fishing an issue. If you intend to do so, please let us know as soon as possible so that we may appropriately prepare". have to conclude that the crown at no time intended not by word or action to make commercial fishing the constitutional issue at least prior to their brief which gave rise to this motion. Without prejudging the case, have to agree that the thrust of the defense evidence would leave one to believe that the defendants were engaged in fishing commercially as one understands that concept in the everyday sense. The crown had right and perhaps duty to answer the defendants' evidence and in doing so did not breach any agreement that the defendants would not be prosecuted for commercial fishing. Since the crown had right to respond to the evidence, there will be no direction to it as requested by the defendants. It must not be taken that the crown's brief is accepted by the court over that of the defense just that it was reply within the law. It may be appropriate at this point to state that in filing the argument crown counsel was clearly free of malice or devious approach. Any suggestion of professional misconduct is clearly unwarranted. As put forth early in this ruling, the important question to be considered is constitutional one. Both parties have already expended great amount of time and resulting money as witnessed by the now five days of hearings and mountain of material that has been filed with the court. To allow this case to "go off the rails" at this juncture would not be prudent. Before proceeding, however, am directing the defendants to clearly state what they consider the constitutional issue to be. It is not precise. (emphasis added) Pursuant to the direction of the trial judge, defence counsel filed new constitutional question dated July 27, 1995, the text of which is: 1. The Constitutional Question to be determined, as reflected in the August 23, 1994 constitutional notice and the relief sought in the application for directions made on June 28, 1995 is as follows: Do the Metis of Northwestern Saskatchewan have an Aboriginal right to fish? 2. In order to answer that Constitutional Question, the following issues must be determined: (i) Do the Metis of Northwestern Saskatchewan have an existing Aboriginal right to fish? (ii) If the answer to (i) is yes, what is the scope of that right? It is submitted that this is the proper approach to take, as set out in Sparrow by the Supreme Court of Canada. At page 401, after finding "that the Indians have an exisiting (sic) aboriginal right to fish in the area where Mr. Sparrow was fishing at the time of the charge", the Supreme Court at page 402 then stated: The scope of the existing Musqueam right to fish must now be delineated. added] R. v. Sparrow (1990) 1990 CanLII 104 (SCC), 70 D.L.R. 385 (SCC) It is therefore submitted that it is first necessary to determine whether the Metis have an existing Aboriginal right to fish in the area where Morin and Daigneault were fishing at the time of the charges, and if such an Aboriginal right to fish exists, to then delineate the scope of that right. The record is not clear exactly what transpired following this interim ruling. The record does reflect the fact that no further evidence was called by either party. Final arguments were heard on August 14, 1995. The trial judge issued his decision on April 24, 1996. With respect to the issue of characterization of the aboriginal right claimed, the trial judge stated as follows at p. 9: Considerable discussion surrounded the issue of the Defendants (sic) right to "fish commercially" particularly after Counsel filed their first briefs and the subsequent defense motion asking the Court to direct the Crown away from the issue of commercial fishing. agreed with the Crown that the Defendants (sic) evidence seemed to point in that direction, however, after reviewing the notes of the judge at the pre-trial conference and correspondence between the parties, concluded that it was not the intention of the parties that the issue should be so confined. Accordingly, took the position that it is the obligation of the court to bring the issue into focus. After considering the briefs of Counsel and argument ruled that the issue would be "did the Accused have an aboriginal right to fish". In effect, did that right exist with their ancestors from the time of the declaration of British Sovereignty to the passing of the Constitution Act 1982 Section 35(1) and 52 and if it did exist was it lawfully extinguished at any At p. 10: Further, will not consider whether the Metis have right to fish for commercial purposes nor for ceremonial, social, nor for food nor for sustenance. Was the trial judge entitled to ignore the Crown's argument that the aboriginal right claimed should be characterized as fishing for commercial purposes? The trial judge was not correct in declining to better define the aboriginal right in question beyond "the right to fish". In R. v. Van der Peet, 1996 CanLII 216 (SCC), [1996] S.C.R. 507, Lamer C.J. stated at p. 563: The first step in the application of the integral to distinctive culture test requires the court to identify the precise nature of the appellant's claim to have been exercising an aboriginal right. In the companion decision of R. v. Gladstone, [1996] S.C.R. 723 at pp. 743-44, Lamer C.J. noted: The first step in applying the Van der Peet test is the determination of the precise nature of the claim being made, taking into account such factors as the nature of the action said to have been taken pursuant to an aboriginal right, the government regulation argued to infringe the right, and the practice, custom or tradition relied upon to establish the right. At this stage of the analysis the Court is, in essence, determining what the appellants will have to demonstrate to be an aboriginal right in order for the activities they were engaged in to be encompassed by s. 35(1) There is no point in the appellants being shown to have an aboriginal right unless that aboriginal right includes the actual activity they were engaged in; this stage of the Van der Peet analysis ensures that the Court's inquiry is tailored to the actual activity of the appellants. In fairness to the trial judge, the foregoing decisions had not been published at the time he rendered his decision. The Crown is correct that the trial decision must be restricted to finding that the respondents established their aboriginal right to fish for food, which is the lowest in the hierarchy of aboriginal fishing rights of the three that have been acknowledged to date by the Supreme Court of Canada: the right to fish for food (R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] S.C.R. 1075); the right to exchange fish for money or other goods (R. v. Gladstone, supra); and the right to fish commercially (R. v. N.T.C. Smokehouse Ltd., 1996 CanLII 159 (SCC), [1996] S.C.R. 672). The question is whether interpreting the decision as set out in the foregoing as one restricted to the Metis' aboriginal right to fish for food, the trial decision can be upheld based on the pre-trial communications between the parties as to the issues that would be argued during the trial, despite the fact the evidence at trial indicates the respondents were fishing commercially (as found by the trial judge at p. of his judgment). The trial judge found that the Crown had notbreached an undertaking, nor had it misrepresented itsposition to the defence with respect to the constitutionalissue. The trial judge, nevertheless implicitly found thatthe respondents had been prejudiced in their defence throughthe misunderstanding which had occurred between therespondents\' counsel and Crown counsel. This appears from the following remarks in his judgment: Considerable discussion surrounded the issue of the Defendants right to "fish commercially" particularly after counsel filed their first briefs and the subsequent defence motion asking the Court to direct the Crown away from the issue of commercial fishing. however, after reviewing the notes of the judge at the pre-trial conference and correspondence between the parties, concluded that it was not the intention of the parties that the issue should be so confined. In retrospect, one can readily understand how defence counsel was mislead with respect to the Crown's response with respect to the issue of commercialism. In questioning the Crown whether commercialism would form any part of the prosecution's case, and in receiving the answer it would not, defence counsel framed their case as an aboriginal right to fish for food. The portion of the Crown's letter stating: Of course, it is open to you to attempt to establish that your clients have an aboriginal right to fish for commercial purposes as potential defence to the charges. Therefore, you may wish to make commercial fishing an issue was open to the interpretation based on the other discussion which occurred at the pre-trial conference, that as long as the defence did not allege an aboriginal right to fish for commercial purposes, the Crown would not raise commercialism. Defence counsels' understanding was that as long as they restricted themselves to alleging an aboriginal right to fish for food, they would not ". make commercial fishing an issue". There is no question the respondents did not lead evidence to establish an aboriginal right to fish commercially. The Crown candidly agrees in its brief at p. 24: It is acknowledged that the customs, practices and traditions relied upon by the accused to establish an aboriginal right upon which to base their defence do not focus upon commercial sales of fish by Metis in the historical period. The question for the trial judge was whether to attach responsibility for the misunderstanding which developed between counsel solely to defence counsel, or whether Crown counsel should also accept some responsibility for the same. He concluded it was not the intention of the parties that theissue should be confined to the commercial issue. He wasentitled to do so, and such a finding of fact should not bedisturbed by this Court acting on appeal. asked Crown counsel on this appeal why the Crown was so vehemently insisting that the aboriginal right advanced by the accused be characterized as one of fishing for commercial purposes, when the Crown could contest that issue if and when it arose in another case, bearing in mind the present case had no precedent value with respect to the issue of fishing for commercial purposes. The response was that the Crown has another Metis fishing for food case in the court system suggesting it did not wish to have this particular decision as precedent. However, it should be noted that the case law makes it perfectly clear that aboriginal rights are site specific and the finding of an existing aboriginal right in one group in one location does not establish the same right for another group in different location. Vide: R. v. Van der Peet, supra, per Lamer C. J. at p. 559: Aboriginal rights are not general and universal; their scope and content must be determined on case-by-case basis. The fact that one group of aboriginal people has an aboriginal right to do particular thing will not be, without something more, sufficient to demonstrate that another aboriginal community has the same aboriginal right. The existence of the right will be specific to each aboriginal community. It is important to our system of justice, that persons who are brought before the courts involuntarily, perceive that they have been treated fairly by the system. In Caccamo v. R., 1975 CanLII 11 (SCC), [1976] S.C.R. 786, Spence J. stated at p. 796: In my view, it is the duty of the court to be vigilant to assure itself that the appellant has had fair trial and if the regrettable conduct of the prosecution, using that term to cover both the police and Crown counsel, ever results in unfairness then the court should act with decisiveness to reverse such unfairness. (emphasis added) As noted above, there is no suggestion that the prosecution in this case was guilty of any regrettable conduct and indeed conducted itself in proper manner throughout. Nevertheless, the Crown was unwittingly contributor to the misunderstanding which at the end of the evidence contributed to an unfair result if its position was accepted. The decision would have been foregone conclusion. The Crown agrees that no substantial evidence of the Metis' aboriginal right to fish commercially had been presented at trial. At the same time, the trial judge's decision did not create an unfair result for the Crown, as the Crown had the full opportunity to cross-examine all witnesses presented by the respondents in support of their claim of an aboriginal right to fish for food. There is precedent for an appellate court accepting the characterization of the aboriginal right advanced at trial. In R. v. Sparrow, supra, Mr. Sparrow was licensed commercial fisherman (Vide: British Columbia Court of Appeal decision (1987), 1986 CanLII 172 (BC CA), 36 D.L.R. (4th) 246 at p. 255). There was evidence in that case from which it might have been argued that Mr. Sparrow was in fact commercially fishing. The length of the net he was using was twice the length allowed for food fishing. The Crown apparently did not advance the argument at trial, and the Supreme Court of Canada accepted that position. At p. 1101, the Court noted: In the courts below, the case at bar was not presented (emphasis added) on the footing of an aboriginal right to fish for commercial or livelihood purposes. Rather, the focus was and continues to be on the validity of net length restriction affecting the appellant's food fishing licence. (original emphasis) We therefore adopt the Court of Appeal's characterization of the right for the purpose of this appeal, and confine our reasons to the meaning of the constitutional recognition and affirmation of the existing aboriginal right to fish for food and social and ceremonial purposes. For the foregoing reasons, grounds 1, 2 and 3 of theappeal are dismissed. In any event, was the aboriginal right in issue properly characterized as one of fishing for food? In the alternative, the respondents also took the position that based on the charges laid, the proper characterization of the aboriginal right on the facts of this matter, was the aboriginal right to fish for food. The respondents base this position on the fact that the breach of regulations with which they were charged, did not relate to commercial activity, but were applicable for whatever reason the fishing activity was being pursued. They state there are no cases where an aboriginal has had to establish commercial aboriginal right where the offence charged did not allege commercial activity. Their position is that unless the charges allege an infringement of the commercial provisions of the Fishery Regulations, the aboriginal right to fish commercially, or to exchange fish for money or other goods, can never be in issue. am not able to agree with this submission. The foregoing argument confuses what the Crown must establish to prove the offences alleged, with what the accused must establish to succeed in defence of aboriginal right. With respect to the offence(s) alleged, the burden of proof is on the prosecution. With respect to the constitutional defence of aboriginal right, the burden is on the accused to establish that the right claimed was an integral practice, custom, or tradition of central significance to the aboriginal society in question. (Vide: R. v. Van der Peet, supra, at p. 553) With respect to the evidence led to establish or deny the aboriginal right being claimed, it is the duty of the Court to determine the actual activity being engaged in before attempting to determine if that activity was integral to the distinctive culture, etc. of the aboriginal society in question. (Vide: R. v. Gladstone, supra, at pp. 743-44, quoted at p. 25 herein) As in any trial, criminal or civil, the opposing party is entitled to cross-examine and lead evidence with respect to any matter in issue in the trial. When that issue is claimed aboriginal right, at issue is the actual activity being engaged in by the accused. Allowing the Crown to question or lead evidence with respect to matter placed in issue by the accused, does not interfere with the accused's ability to control his or her defence, but is simply allowing the Crown to perform its role in our adversarial system. Vide: R. v. Swain (1991), 1991 CanLII 104 (SCC), S.C.R. 933 at p. 975. In this case the respondent Morin readily admitted the purpose of the fishing engaged in was to sell at least some portion of the fish obtained. The respondent, Daigneault, was not questioned on the purpose of their fishing, but he was clearly aiding Morin in the fishing activity. The trial judge found with respect to the commercial purpose for the fishing: agreed with the Crown that the Defendants evidence seemed to point in that direction, Once it was determined the actual activity engaged in wasfishing for the purpose of selling the fish, the onlyaboriginal rights that could be said to be infringed waseither the aboriginal right to exchange fish for money orother goods, or the aboriginal right to fish commercially (perR. v. Gladstone, supra, at p. 744). On the evidence, theaboriginal right to fish for food was no longer relevantbecause the evidence did not establish that was the activitythe respondents were engaged in. Ground (Extinguishment) With respect to the Crown's position that the Metis' aboriginal right to fish had been extinguished by the issuance of Scrip, the trial judge held at pp. 32-33 of his judgment: find the Defendants have proven through the evidence and to the criteria set forth in Sparrow that they, as Metis of Northwest Saskatchewan have an aboriginal right to fish and that the right arose prior to 1870. find that no legislation or agreement with the Crown has extinguished that right, refer in particular to the Dominion Land Act, 1906, and Order-in-Council 1459. From the oral history evidence, and the expert testimony find that the Metis at the time of the issue of scrip understood that their fishing, hunting and trapping lifestyle would not be disturbed. To repeat the words of the Supreme Court in Sparrow: "The test of extinguishment to be adopted, in our opinion, is that the Sovereigns intention must be clear and plain it if is (sic) to extinguish an aboriginal right." have no hesitation in finding the Crown has failed to discharge the burden of proving the Defendants Aboriginal right to fish has been extinguished. The trial judge found as fact that the scrip issued to Metis persons in northwest Saskatchewan in 1906 made no reference to hunting or fishing rights (p. 23). As noted in the quotation from his judgment above, the trial judge also found as fact that at the time this scrip was issued, the Metis of northwest Saskatchewan "understood their fishing, hunting and trapping lifestyle would not be disturbed." On this appeal, the Crown argues that as matter of law, the acceptance of scrip by Metis persons amounted to surrender of such person's aboriginal title, and that the aboriginal right to fish was extinguished with the extinguishment of title. This position is not maintainable. The trial judge did not make finding of fact that the issuance of scrip to those Metis persons who accepted the same, constituted legal surrender of aboriginal title. Such finding was not necessary for his decision on the issue of extinguishment of the aboriginal right to fish, and it would be improper for this Court to make such finding on appeal. Without such finding, there is absolutely no point in discussing what might be incidental to such finding had it been made. As the intervenors pointed out, there is presently lawsuit in the Court system to determine if the issuance of scrip in the circumstances surrounding the same, amounted to surrender of aboriginal title by Metis persons, and that is the proper manner in which to have such an issue determined. As noted by Dickson C.J. in R. v. Sparrow, supra, at p. 1095: the trial for violation of penal prohibition may not be the most appropriate setting in which to determine the existence of an aboriginal right, The Crown's position that R. v. Howard, [1994] S.C.R. 299 is an authority that should have been applied by the trial judge is not accepted. The headnote for this case in the Supreme Court Reports correctly states at p. 300: The issues in this case are essentially factual in nature and the subject of concurrent findings in the courts below. In the absence of palpable and overriding error which affected the trial judge's assessment of the facts, an appellate court should not reverse the conclusions of the lower court. The facts in this case are not similar to the facts in the Howard case, and in the absence of such similarity, the Howard decision is of no precedent value in this case. The decisions of the Supreme Court of Canada in R. v. Adams, 1996 CanLII 169 (SCC), [1996] S.C.R. 101 and R. v. C�t�, [1996] S.C.R. 139 support the trial judge's right to make finding of fact, as he did, that the aboriginal right of Metis persons in northwest Saskatchewan to fish, existed separate and apart from any claim they may have to aboriginal title. In R. v. C�t�, at pp. 166-167, Lamer C.J. stated: For the reasons have given in the related appeal in Adams, supra, find that aboriginal rights may indeed exist independently of aboriginal title. As explained in Adams, at para. 26, aboriginal title is simply one manifestation of the doctrine of aboriginal rights: We wish to reiterate the fact that there is no priori reason why the defining practices, customs and traditions of such societies and communities should be limited to those practices, customs and traditions which represent incidents of continuous and historical occupation of specific tract of land. In the Adams decision, Lamer C.J. noted at p. 130: While these events may be adequate to demonstrate clear and plain intention in the Crown to extinguish any aboriginal title to the lands of the fishing area, neither is sufficient to demonstrate that the Crown had the clear and plain intention of extinguishing the appellant's aboriginal right to fish for food in the fishing area. The foregoing makes it clear that even where the Court finds an aboriginal title to land has been extinguished, this does not mean the aboriginal right to fish has been extinguished as well. As noted in R. v. Sparrow, per Dickson C.J. at p. 1112: Fishing rights are not traditional property rights. They are rights held by collective and are in keeping with the culture and existence of that group. Courts must be careful, then, to avoid the application of traditional common law concepts of property as they develop their understanding of what the reasons for judgment in Guerin, supra, at p. 382, referred to as the "sui generis" nature of aboriginal rights. The trial judge\'s finding that an aboriginal right to fishexisted in the Metis persons of northwest Saskatchewanseparate and apart from the issue of aboriginal title is onehe was entitled to make and should not be disturbed. Ground (Infringement and justification with respect to the licensing requirement) This ground of appeal states the learned trial judge erred by failing to conclude that the requirement to obtain licence before fishing with net, is not prima facie infringement of an existing aboriginal right to fish for food. The evidence at trial, both oral and documentary, established that in northern Saskatchewan, historically and now, there was very little, if any, distinction between the Indian and Metis aboriginal people. The distinction has always been primarily legal one based on whether ancestors opted for Scrip or for Treaty. As the trial judge noted at p. 34 of his decision: It was recognized from the earliest days that the division was really artificial and that the two peoples lived very much alike and in the exact same area. The artificial division is finally recognized, in my view, in Section 35(1) of the Charter. In support of the foregoing view, the trial judge not only reviewed the oral evidence presented at trial, but also some of the documentary evidence submitted at trial, including the following excerpts from exhibits filed: (1) Exhibit D-8 the report of Treaty Commissioner McKenna dated January, 1907 where at p. Commissioner McKenna stated: ". It is difficult to draw line of demarcation between those who classed themselves as Indians and those who elected to be treated with as half-breeds. Both dress alike and follow the same mode of life. It struck me that the one group was, on the whole, as well able to provide for self-support as the other." (2) Exhibit D-10 final report of the Alberta and Saskatchewan Fishery Commission of 1911, where at p. 62 the following is stated: To intelligently handle this question it will be necessary to go into the subject more fully than at first sight it may appear desirable, and for the sake of brevity the term "Indian" is meant to include Halfbreed as well, and one term might well include them both, for it has been repeatedly stated to the Commissioners that there are few, if any, pure bred Indians in existence at the present time, referring especially to those living in the north. The distinction is that the Halfbreed is Canadian citizen while the Indian can be made so only with difficulty under our present Indian Act." (3) Exhibit D-23 letter from the Saskatchewan Attorney General to the Federal Minister of Indian Affairs dated December 11, 1935: The advent of the white man created this half-breed problem. When the treaties were made with the Indians they were given the right to elect as to whether they would become Treaty Indians or accept scrip and become ordinary citizens of the country. At these points, and on the Indian Reserves in and about them, the Indian population so called is really largely half breed. There are very few full blooded Indians and those who are on the reserves generally have strain of white blood. Those who are not Treaty Indians and are half-breeds are therefore approximately in the same category as those who are on the reserves." (4) Exhibit D-23b letter from the Indian agent at Battleford to the Inspector of Indian Affairs at Regina dated February 28, 1938: "I have made very little if any distinction, between Treaty Indians and Non-Treaty or Half breed as they all work together and live the same form of life and the country left to them would soon come back to certain extent, it is the annual outside outfits that do the harm." (5) Exhibit D-23h letter from an Oblate missionary located at La Loche, Saskatchewan, dated August 10, 1939 to his Bishop: "I write Indians and Metis (I.&M.); in fact the difference is nominal. have here brothers, some of whom are Indians and others Metis, even case where the father is Metis and his son an Indian!" The foregoing evidence is referred to simply to emphasize thatthe Indian and Metis aboriginal people in northernSaskatchewan are similarly situated. In considering whether alicensing requirement constitutes an infringement of theaboriginal right to fish for food, there is no basis todistinguish between the aboriginal groups with respect to whatconstitutes infringement. The regulation of fishing in the Province of Saskatchewan is contained in part in the Fishery Regulations in place in 1993, but was amplified at trial by the evidence of Mr. John Weir, regional fisheries biologist employed by the Saskatchewan Department of Environment and Resource Management. Mr. Weir testified that the management of the Fish Resource is concerned in the first instance with conservation, and thereafter with the management of the resource, which consists of allocating the resource amongst the various user groups. The Regulations make provision for three types of licences: sport, domestic, and commercial. Sport fishing is angling. Domestic fishing as noted in the Regulations quoted above, is fishing for food by means of net. Domestic fishing licences cost $5.00 and are issued for specific body of water. The issuance of such licences are discretionary. The resource officer decides if one should be issued. Vide: evidence of John Weir at p. 712 of the transcript: Q. Now, also wanted to ask you about people that want to fish for food purposes, for the purposes of feeding themselves and their family. If somebody wants to do that, how do they go about A. Well, they would presently they would come into our district office and talk to the local conservation officer. And at that situation, by policy, he is to the officer determines the need of the individual for the purpose of domestic fishing, which is to supply fish for the person's family. domestic fishing licence is the only way the northern population including Metis, but exclusive of treaty Indians, can legally fish for food with net. In other words, the Metis have no more right to domestic food fishing licence than the balance of the non-Indian population. What is not contained in the Regulations, is the fact that treaty Indian persons can acquire treaty-net licence for lake which is free, and non-discretionary except possibly for closed waters. In addition, treaty Indians may dip net and spear fish without licence. (evidence of John Weir, pp. 714-15) The Regulations state an Indian may also angle without licence. Mr. Weir testified at pp. 725-26 of the transcript with respect to the priority of access to the fishery as follows: Q. Now, when you say they have "first right to the resource", wonder if you could elaborate on that and tell the Court what you mean by that. A. Well, I'm not totally versed in Sparrow, but there is our policy or the system where the conservation if am managing lake for an allocation, the first thing is conservation. The second would be to the treaty fishermen, and the third level would be to the domestic. Following that we would maintain and then this is based on regional approach, the sport and commercial users. It is against the foregoing background that the question of whether the domestic licence requirement to fish for food with net imposed on Metis persons, is prima facie infringement of their right to fish for food. The trial judge made reference in his decision to the equality provisions of the Charter in s. 15 of the Charter, and decided there was an infringement based on the fact Metis and treaty Indians were treated unequally. One can agree with the Crown that thetrial judge should not have based his decision on the Charterwhen the same was not part of the argument made before himwithout first giving counsel the right to address theargument. One can also agree with the Crown, that resort to the Charter was unnecessary, and the question of infringement should have been decided on the basis of the criteria set out in R. v. Sparrow, supra at p. 1112, wherein the Court stated: To determine whether the fishing rights have been interfered with such as to constitute prima facie infringement of s. 35(1), certain questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that right? The onus of proving prima facie infringement lies on the individual or group challenging the legislation. In R. v. Gladstone, at p. 757, the SCC went on to explain: The questions asked by the Court in Sparrow do not define the concept of prima facie infringement; they only point to factors which will indicate that such an infringement has taken place. Simply because one of those questions is answered in the negative will not prohibit finding by court that prima facie infringement has taken place; it will just be one factor for court to consider in its determination of whether there has been prima facie infringement. R. v. Nikal, 1996 CanLII 245 (SCC), [1996] S.C.R. 1013 makes two points with respect to the issue of infringement: (1) The requirement of licence is not by itself an infringement, unless it can only be obtained with great difficulty or (2) While the requirement of licence may not constitute an infringement, the conditions of the licence may do so. The domestic food fishing licence that Metis are required to obtain under the Saskatchewan Regulations in order to exercise their aboriginal right to fish for food, is not one that is necessarily available to all Metis persons in the geographical area delineated by the trial judge. The evidence establishes that the issuance of such licence is discretionary. One of the conditions of the licence is that the Metis person satisfy conservation officer who "will determine the need of the individual for the purpose of domestic fishing". While there is no evidence that such licence has ever been refused to Metis person, the Supreme Court has said on number of occasions, that favourable exercise of administrative discretion by the Crown cannot substitute for Regulation which otherwise constitutes an infringement. As noted in R. v. Adams, supra, at p. 132: In light of the Crown's unique fiduciary obligations towards aboriginal peoples, Parliament may not simply adopt an unstructured discretionary administrative regime which risks infringing aboriginal rights in substantial number of applications in the absence of some explicit guidance. If statute confers an administrative discretion which may carry significant consequences for the exercise of an aboriginal right, the statute or its delegate regulations must outline specific criteria for the granting or refusal of that discretion which seek to accommodate the existence of aboriginal rights. In the absence of such specific guidance, the statute will fail to provide representatives of the Crown with sufficient directives to fulfil their fiduciary duties, and the statute will be found to represent an infringement of aboriginal rights under the Sparrow test. The discretionary aspect of licence issuance to Metis persons who wish to fish domestically does constitute an infringement because it has the potential to deny their right to fish for food, and does not provide specific criteria for the granting or refusal of the licence. The only justifiable criteria that could be contained in such licence would be criteria related to conservation. With respect to the $5.00 fee charged for domestic food fishing licence, no evidence was led as to the reason for the fee. It does seem strange that for one net on one lake $5.00 fee is charged when the object is fishing for food, and commercial fisherman pays only $10.00 for ten nets. The respondents did not lead evidence suggesting the $5.00 fee was hardship. However, the evidence does establish that treaty Indian persons are not charged fee with respect to the licence issued to them for food fishing which suggests the Department regards such fee to be hardship for treaty Indian persons. If this is so, it would constitute sufficient reason to hold that the charging of fee to Metis persons for the same food fishing right, does constitute hardship. A third consideration which does not arise from theregulatory regime, is the departmental policy which places ahigher priority on treaty Indian fishing than domestic licencefood fishing for Metis persons. In any one situation, Metis persons could be denied the right to fish for food in the interests of conservation while treaty Indian persons might continue to fish. As noted above, there is no basis todistinguish between Indian and Metis aboriginal groups withrespect to the right to fish for food. This policy constitutesan infringement. Once an infringement is found, the onus shifts to the Crown to demonstrate that the regulation(s) is justifiable. As noted in R. v. Sparrow, supra, at p. 1121: If an infringement were found, the onus would shift to the Crown which would have to demonstrate that the regulation is justifiable. To that end, the Crown would have to show that there is no underlying unconstitutional objective such as shifting more of the resource to user group that ranks below the Musqueam. Further, it would have to show that the regulation sought to be imposed is required to accomplish the needed limitation. The infringements of the Metis aboriginal right tofish for food found in the foregoing, cannot be justified bythe Crown, because the infringements do not relate to anyidentifiable objective that makes such infringementsnecessary. For the foregoing reasons, this ground of appeal is dismissed. Ground (Identification of nets) This ground of appeal takes issue with finding that the requirement in s. 27 that net fishermen stake and identify themselves by licence number with respect to such nets does not constitute prima facie infringement of the Metis' right to fish for food. One can agree with the Crown that the staking and marking of nets as required by Regulation 27 set out in the foregoing, would normally not be an infringement, and can be justified on the conservation basis of identifying persons qualified to fish in any particular area and the purpose for such fishing. However, once it has been held that thedomestic food fishing licence requirement infringes theaboriginal right to fish for food, it follows that theRegulation requiring a person to legibly mark that licencenumber on the stakes is also an infringement that cannot bejustified, for the simple reason there is no requirement on aMetis person in the geographical area delineated by the trialjudge, to have the licence. For the foregoing reason, this ground of appeal is Addendum Prior to the hearing of the appeal, Crown counsel served and filed notice of motion seeking an order that certain articles and reports be deleted from the respondents' book of authorities, and that references to such articles and reports in the respondents' factum be struck out on the basis that the articles and reports referred to matters of evidence, not argument. The position of the Crown was that any such evidence must first be introduced at trial where its admissibility can be challenged, and not on appeal. Argument on this matter was reserved. In disposing of this appeal, it was not necessary to refer to any of the articles and reports. As result, it is not considered appropriate to rule in "bulk" manner on the use, if any, that may be made of such articles and reports on appeal. The motion is dismissed without commenting on the validity of the point raised. The appeal is dismissed. The respondents are entitled to their taxable

The two accused, both Metis, were separately charged in 1993 with six fishing offences relating to the use of nets. The accused who had ten nets on two lakes at the time of seizure admitted to being commercial fisherman. The Crown had stated to the defence that fishing for commercial purposes would not be an issue. The trial judge dismissed the defence motion for a direction that the Crown comply with his undertaking that the issue was whether the Metis of Northwestern Saskatchewan have an aboriginal right to fish for food. The Provincial Court Judge found both accused not guilty on three of the counts on the basis of standard criminal law defences but would have convicted on the other three charges but for the constitutional defence. The Crown appealed the acquittals based on the constitutional defence. Grounds for appeal included failure to distinguish between an Aboriginal right to fish for food and for commercial purposes; failure to find the accused were engaged in commercial fishing and that neither the accused nor their ancestors possessed an Aboriginal right to fish for commercial purposes; by concluding that scrip issued to Metis pursuant to s6(f) of the Dominion Lands Act and Order-Council did not extinguish any Aboriginal right to fish for food or commercial purposes; the trial judge erred by failing to conclude that the requirement to obtain a licence before fishing with a net was not a prima facie infringement of an existing aboriginal right to fish for food; in acquitting the accused when neither the Aboriginal rights defence nor equality rights defence had any application to the charge. The Saskatchewan Metis Nation and National Council were granted Intervenor status. HELD: 1)The first three grounds were dismissed. The trial judge found that the Crown had not breached an undertaking, nor misrepresented its position with respect to the constitutional issue but implicitly found that the respondents had been prejudiced through the misunderstanding during pre-trial communications between council as to the issues that would be argued during trial. The trial judge was entitled to find as fact that it was not the intention of the parties to confine the issue to commercial fishing. 2)Once it was determined the actual activity was fishing for the purpose of selling the fish, the only rights that could be said to be infringed were either the right to exchange fish for money or goods or the right to fish commercially (Gladstone). The aboriginal right to fish for food was no longer relevant because the evidence did not establish that as the activity they were engaged in. 3)The trial judge's finding that an Aboriginal right to fish existed in Metis persons of northwest Saskatchewan separate and apart from the issue of aboriginal title was one he was entitled to make and should not be disturbed. The case law makes it perfectly clear that aboriginal rights are site specific and the finding of a right in one group in one location does not establish the same right for another group in another location (Van der Peet). 4)There is no basis to distinguish between Indian and Metis people when considering whether a licensing requirement constitutes an infringement of the aboriginal right to fish for food. 5)The departmental policy which placed a higher priority on treaty Indian fishing than domestic licence food fishing for Metis persons constituted an infringement. Once an infringement is found the onus shifts to the Crown to demonstrate that the regulation is justifiable. The infringements could not be justified because they did not relate to any identifiable objective that made them necessary. 6)The trial judge should not have based his decision on the Charter when it was not part of the argument before him without first giving counsel the right to address the argument. 7)Since there is no requirement on a Metis person in the geographical area delineated to have a licence it followed that Regulation 27 requiring a person to legibly mark the licence number of the stakes was also an infringement that could not be justified.

8_1997canlii11328.txt

REDACTED VERSION QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2016 SKQB 297 Date: 2016 09 08 Docket: DIV 501 of 2016 Judicial Centre: Saskatoon Counsel: Brent D. Barilla, Q.C. for the petitioner Raymond Wiebe for the respondent FIAT SCHERMAN J. September 8, 2016 Introduction [1] The petitioner’s application seeks orders granting her exclusive possession of the family home, primary residence of the children and supervised access only for the respondent father. She seeks this relief based on her allegations that the respondent has anger management problems that make her and their daughters fearful of him and addictions to pornography and masturbation that make it not in the best interests of the children, that the children reside with her, and that their father have only supervised access to them. [2] On August 18, 2016 the petitioner received, on without notice application, an interim order of this court granting her exclusive possession of the family home. Although no reasons were given on the granting of the interim exclusive possession order, the petitioner’s grounds for so applying stated: 9. the respondent’s anger management issues have made it untenable for them to continue to reside in the same home. The petitioner is fearful of the respondent’s reaction to receiving and reviewing the information outlined in her application materials. [3] Following the service of the without notice order granting the petitioner exclusive possession of the family home, she served and filed an amended notice of application in which she sought continuation of the interim exclusive possession order and supervised specified daytime access by the respondent every other weekend. The respondent takes the position that this order should not have been granted in the circumstances of this case. [4] The respondent has in response to this application filed detailed affidavit in which he disputes the petitioner’s allegations of addictions to pornography or masturbation, denies that he has ever masturbated when in the company of their daughters as alleged, acknowledges that historically he had anger management issues but states that he has and continues to receive counselling for anger management as well as takes prescribed medications for his attention deficit disorder [ADD], which is related to his anger management. He states that particulars of the anger management incidents alleged by the petitioner are dated, that he now manages his anger well, that there has never been single incident of physical contact involving the petitioner or the children, and there is no basis to the allegations of fear. [5] He says that he has for years been stay-at-home dad and has been significant caregiver throughout and, in aspects of that care and at times, has been primary caregiver of the children. For his part he provides evidence of anger displayed by the petitioner towards him and the children. He says that prior to the petitioner obtaining an exclusive possession order the petitioner was asking him to leave the family home. It was his position that if parenting plan and agreement suitable to him was reached he was prepared to do so. He seeks to have the exclusive possession order terminated and an order providing for shared parenting of the children. Background Facts [6] The parties began cohabiting in August of 2007, had their first daughter [name of child and date of birth stated], and married on January 2009. They had their second daughter [name of child and date of birth stated]. The petitioner is [profession stated] who has since they began cohabiting practised as such in Saskatoon. The respondent was employed as [occupation stated]. [7] Following the birth of [name of child and year of birth stated] the petitioner took six-month maternity leave and then the respondent took six-month paternity leave. The respondent’s employment ended in 2010 when his then employer was taken over by another company and he was unable to find another such position. The petitioner’s evidence is that at this time the respondent told her that he wanted to be stay-at-home dad and that is what happened. While there is evidence of the petitioner’s dissatisfaction with or disapproval of the manner and extent to which the respondent performed this role, it is clear that he has been significantly involved in the parenting of their children until he left the family home pursuant to the August 18, 2016 order of this court. [8] The petitioner states that since the respondent was unable to find work she suggested to the respondent that he start up [type of business stated] with her assistance, which he did in 2011. The petitioner’s evidence is that this business involved some six to eight hours of work per week by the respondent, after hours. Thus with this limited work commitment the conclusion draw is that, in addition to the paternity leave the respondent took in 2009, from 2010 forward, he was available full time to parent the children and was involved in parenting the children to level well beyond what is traditional and would be available to working parent. [9] Both the petitioner and the respondent were significantly involved in the day-to-day parenting of the children and the evidence does not justify the conclusion that one or the other should be classified as having been the primary caregiver. The parties employed caregiver to assist in the care of the children, but none-the-less the respondent can accurately be described as stay-at-home dad until July of 2016 when he once again was able to obtain employment as [occupation stated]. The respondent says that he took this position because of pressure by the petitioner that he do so. [10] As noted above, the fact that the respondent was stay-at-home dad does not mean that the petitioner was not significantly or equally engaged in the care of their children. What it means is that he was significantly involved in his daughters’ lives, well beyond the level of many or most fathers who have normal work commitments. Absent good reason it is in the best interests of the children that both parents continue to be as involved in the parenting of their children as the circumstances allow. [11] The petitioner’s reasons that this court should order the primary residence of the children be with her and that the respondent should only have limited supervised access are based in her belief and allegations that the respondent has anger management issues and is addicted to pornography and masturbation to the extent that she believes he has masturbated in the presence of the children. All of this she argues justifies the conclusion that it is not in the children’s best interests that he continue to reside in the family home or have other than supervised access to the children. The Applicable Law Re Exclusive Possession of the Family Home [12] Section of The Family Property Act, SS 1997, F-6.3, expressly states that as between themselves both spouses are equally entitled to the possession of the family home and household goods, subject to the power of this court under s. to direct that one spouse be given the exclusive use, possession and enjoyment of same. Section provides: In exercising its powers pursuant to this Part, the court shall have regard to: (a) the needs of any children; (b) the conduct of the spouses towards each other and towards any children; (c) the availability of other accommodation within the financial means of either spouse; (d) the financial position of each spouse; (e) any interspousal contract or, where the court thinks fit, any other written agreement between the spouses; (f) any order made by court of competent jurisdiction before or after the coming into force of this Act or The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (No. 2) with respect to the distribution or possession of family property or the maintenance of one or both of the spouses or with respect to the custody or maintenance of any children; and (g) any other relevant fact or circumstance. Re Custody and Access and Appropriate Parenting Arrangements [13] The Divorce Act, RSC 1985, (2d Supp) directs as follows at s. 16(8) to (10): 16(8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child. (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child. (10) In making an order under this section, the court shall give effect to the principle that child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact. [14] Section of The Children’s Law Act, 1997, SS 1997, C-8.2, directs as follows: In making, varying or rescinding an order for custody of child, the court shall: (a) have regard only for the best interests of the child and for that purpose shall take into account: (i) the quality of the relationship that the child has with the person who is seeking custody and any other person who may have close connection with the child; (ii) the personality, character and emotional needs of the child; (iii) the physical, psychological, social and economic needs of the child; (iv) the capacity of the person who is seeking custody to act as legal custodian of the child; (v) the home environment proposed to be provided for the child; (vi) the plans that the person who is seeking custody has for the future of the child; and (vii) the wishes of the child, to the extent the court considers appropriate, having regard to the age and maturity of the child; (b) not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as parent of child; and (c) make no presumption and draw no inference as between parents that one parent should be preferred over the other on the basis of the person’s status as father or mother. [15] In Hladun Hladun, 2002 SKQB 319 (CanLII) at para 39, 222 Sask 141, Ryan Froslie J. (as she then was), stated: [39] The “best interests of the child” is the test in determining parental involvement whether that involvement be by way of custody or access. (See: Young v. Young et al. (1993), 1993 CanLII 34 (SCC), 49 R.F.L. (3d) 117 (S.C.C.)). By virtue of s. 17(9) of the Divorce Act the best interests of the child is presumed to include maximum contact with both parents. Contact is the child’s right, not the parents’ and where, as in this case, parent objects to increased contact, the onus is on that parent to rebut the presumption. (See: C.M. v. B.P. (1995), 1995 CanLII 10817 (SK QB), 129 Sask. R. 278 (Q.B.); Renko v. Magotiaux, [2002] S.J. No. 248 (QL) (Q.B.)). Carol has not provided sufficient evidence in this case to rebut the presumption. The evidence before me indicates that increased contact between Darrell and the children would in fact be to their benefit. [16] In Young Young, 1993 CanLII 34 (SCC), [1993] SCR at page 84 [Young], Justice L’Heureux-Dubé said the following regarding the considerations underlying the best interests tests: The best interests of the child is not simply the right to be free of demonstrable harm. It is the positive right to the best possible arrangements in the circumstances of the parties. This could not be more clearly indicated than in the report on Family Law, supra, as the Law Reform Commission of Canada begins its recommendations on children and the dissolution of marriage with the following words at p. 63: 1. Children should have two fundamental rights when their parents’ marriage ends: (a) the right to social and psychological support by having the most suitable arrangements possible in the circumstances made for their custody, care and upbringing; and (b) the right to economic support. Without disregarding the disruption inherent in divorce, courts must do whatever is within their power to alleviate rather than disregard, minimize or normalize difficulties, and should beware of adopting needlessly cavalier attitude where solutions can be seen to exist. The fact that many children experience stress and disruption upon the breakdown of the marriage, in my view, only increases the obligation of courts to focus their attention on the best interests of the child. The primary goal of the legal system on divorce must be to minimize the adverse effects on children. However, this requires vision of the best interests of the child that is more than neutral to the conditions under which custody and access occur. The harm test clearly cannot meet this objective. [17] The law is clear. My decisions as to custody, access and appropriate parenting arrangements are to be guided by my assessment of the best interests of the child and the starting presumption is that maximum contact with both parents is in the best interests of the children. The onus is on parents who seek to restrict maximum contact to satisfy the court that there is good reason to restrict contact. In seeking to serve the best interests of the children must strive to make the best possible arrangement for the children in the circumstances of the parties. Re Supervised Access and Allegations of Sexual Abuse [18] In C.L.B J.A.B., 2016 SKCA 101 (CanLII) at paras 44-46 [C.L.B.], the Court of Appeal of this Province said the following: [44] The remaining arguments of C.L.B. must be analyzed in the context of the relevant law. The starting point for cases involving allegations of sexual abuse is the overarching principle of the best interests of the child (Young Young, 1993 CanLII 34 (SCC), [1993] SCR 3). With that principle in mind, the issue on an interim application regarding whether supervised access is required where there are allegations of abuse, and it is not possible to determine whether abuse occurred in the past, is whether there is real risk of abuse to the child in the future on the totality of the evidence if access is unsupervised. The level of such risk must be assessed and that factor weighed against all other factors bearing upon the best interests of the child (C.C. L.B. (1995), 136 NFLD PEIR 296 (Nfld UFC) at para 85). [45] Although it is necessary for the Court to exercise degree of caution where allegations of abuse are involved, the cautious approach does not mandate an order which resolves the risk by ensuring there is absolutely no risk as submitted by C.L.B. [46] In Moore Theisen, 2012 SKQB 328 (CanLII), 403 Sask 98 [Moore], the Court dealt with an application for variation of an interim order to restrict the father’s access to supervised access as result of allegations of sexual acts carried out by the father in the child’s presence. Moore was high conflict situation much like this case. In effect, the Court in Moore did not accept that faced with allegations of sexual abuse, the Court should, under the guise of caution, abdicate its responsibility to assess and determine the risk involved with unsupervised access. The Court said: [19] Allegations of sexual abuse of child by parent are not an uncommon allegation in high conflict custody access disputes. Some have validity. Some do not. It is one of the most serious allegations that can be made against parent, because if accepted by the court, the court has no choice but to restrict access to that parent by imposing as minimum supervision access order. The courts recognize that supervised access when imposed creates “an artificial set of circumstances that, other things being equal, would militate against the fostering of proper post-separation relationship” (per Green J. in C.C. v. L.B. (1995), 1995 CanLII 10553 (NL SCTD), 136 Nfld. P.E.I.R. 296, [1995] N.J. No. 386 (QL) (Nfld. S.C.), at para. 92, and there should be good and sufficient reasons presented before the court will order such an artificial relationship between parent and child. [20] Gerein C.J.Q.B. (as he then was) in T.G.F. v. D.S.V., 2005 SKQB 401 (CanLII), 270 Sask. R. 284, at para. 17, pointed out that supervised access is an extreme restriction for the artificial situation it creates, and has the potential to undermine the relationship with non-custodial parent. Gerein C.J. went on to comment on the argument advanced in this matter that extreme caution should be used when such allegations are made, and that the person against whom the allegations exist should have restrictions placed on their access to child or children pending final resolution of the matter. Gerein C.J. rejected such an approach at para. 18 and stated as follows: The adage about erring on the side of caution has its place, but it does not deserve absolute application. Allegations of sexual abuse are always troubling. However, the Court should not simply abdicate its responsibility by postponing its determination under the guise of caution. Rather, the allegations should be examined with care and objectivity. If such an examination reveals the allegations to be reliable and true, or probably so, then the Court should act accordingly. However, if the allegations are based on speculation, conjecture, suspicion or unreliable testimony and evidence, then the Court should reject them. Any other approach invites abuse. The position of counsel for Ms. Moore that once such an allegation is made the court should err on the side of caution, whether or not proper evidentiary foundation has been established, is not accepted. agree with this approach to dealing with allegations of sexual abuse on an interim application. If the evidence is such that proper assessment of the risk going forward can be made, the Chambers judge should do so. [19] The petitioner’s application is based on her allegations that the respondent has anger management problems that create fear in her and the children and that he is addicted to pornography and to masturbation such that he masturbates, albeit under the cover of blanket, even while reading to the children. The argument is that these facts (as the petitioner says they are) should lead to the conclusion that the best interests of the children are served by giving the exclusive parenting of the children to the petitioner with only limited and supervised access. This it is argued will protect the children from both his anger and the risks associated with his sexual addictions as will granting the petitioner exclusive possession of the family home to the petitioner. Re The Implied Sexual Abuse Risks [20] start my analysis with the allegations of addiction to pornography and masturbation. In my analysis of this am guided by the direction in C.L.B. quoted above to the effect that the allegations should be examined with care and objectivity. If such an examination reveals the allegations to be reliable and true, or probably so, then the court should act accordingly. However, if the allegations are based on speculation, conjecture, suspicion or unreliable testimony and evidence, then the court should reject them. As the late Justice Gerein stated “[a]ny other approach invites abuse.” [21] The tenor of the petitioner’s evidence is that based on what she has observed, what she says the children have told her and her conclusions thereon that she needs to protect the children. Implicit in her application and evidence is that she has been and is protecting the children from the risk of sexual abuse by the respondent. [22] In her affidavit she states that in addition to the respondent’s anger, her major concern with the girls spending extended/overnight time with him is his “sex/porn/masturbation addiction”. She states what take to be her basis for making this diagnosis or reaching this conclusion in her affidavit as follows: 41. During our relationship, from the beginning, have observed the respondent habitually masturbate while on the home computer as well as under blanket while sitting on the couch watching sports or movies while [E], the girls and/or am present. have repeatedly requested that he cease this behaviour, but he has been unable to do so. and later after the evidence about him viewing pornography it states: 49. The respondent also masturbates frequently in the evenings while watching TV or movies. The respondent had also masturbated under blanket while reading bedtime stories with the girls in their rooms. [23] It is clear from the petitioner’s affidavit that there were discussions between the petitioner and the respondent as to what the petitioner was observing and that the respondent’s response at the time was that he was scratching not masturbating. In his affidavit he denies her general allegations of masturbation addiction and also denies that he has ever masturbated in the presence of the children. In her reply affidavit to this denial the petitioner acknowledges that when she raised her concerns with him, the respondent has always provided the response that he was itchy and scratching. However, she says what she observed did not look like scratching to her. [24] The respondent states that he has never been diagnosed by anyone with being addicted to pornography or masturbation and that he is not addicted as alleged. He specifically denies any suggestion that he has ever masturbated in the children’s presence explaining that what the petitioner observed would have been him scratching to relieve jock itch condition. [25] The respondent does not deny having watched pornography in the past although he denies many of the particulars alleged by the petitioner. It is clear that the topic of the respondent watching pornography was an issue between the petitioner and the respondent. Based on the evidence conclude that the respondent has responded positively and appropriately to her concerns in this respect. In his affidavit he states that he has not watched pornography since December of 2014 and that at that time he installed software called Covenant Eyes on his computer and cell phone which provides weekly reports to both the petitioner and her friend [C.W.], whom he describes as his accountability partner, to provide assurances to them that he is not watching pornography. In her reply affidavit the petitioner does not dispute this evidence and concedes that she has not seen him access pornography since timeframe she describes as December 2014/January 2015. [26] The petitioner swears as fact that the respondent is addicted to pornography and masturbation and asks the court to accept this as proven. However, her statements to this effect are not statements of fact. Rather it is opinion evidence that she is not entitled to give and to which I cannot reasonably give weight. To the extent that the petitioner has provided factual evidence as background to her opinion, much of it is expressly disputed by the respondent or to the extent allegations are acknowledged by the respondent to have some factual basis, that evidence relates to significantly dated matters. [27] The problems with the petitioner’s evidence of addiction are multiple and include: i. She is [profession stated], not psychologist or psychiatrist and has demonstrated no qualifications to make diagnosis that the respondent is so addicted; ii. Even if she had demonstrated expertise and qualification in the area, as party to the proceedings, receipt of opinion evidence from her would be inappropriate; iii. have no evidence nor basis to take judicial notice that pornography or masturbation addiction is accepted within the psychiatric or psychological professions as recognized forms of addiction; iv. have no evidence, nor basis to take judicial notice, that if an individual frequently views pornography and/or frequently masturbates that this translates into risk that the individual is risk to sexually abuse his children or is pedophile risk; v. Aside from the fact that the petitioner’s evidence is largely disputed, find her evidence to be unreliable because it is not evidence of fact but of her beliefs and is based upon suspicion, conjecture or speculation flowing from what she says she has seen (which itself is an inference) and/or based upon what she says the children have said to her which carries the additional problem of having hearsay basis. [28] The petitioner gives evidence of “pinching” of [name of child stated] bum which she sees as buttressing her concerns that there is credible risk that the children are at risk of sexual abuse. Other than her belief that the respondent has masturbated while in the presence of the children, the only concrete evidence of any contact with one of the children that might be seen as perhaps having sexual element is the pinching incident. To draw such conclusion from the circumstances of this event is simply not credible or reasonable. [29] Whether the respondent pinched [name of child stated] bum to have her move over or whether it was part of innocent playing with [name of child stated] while she was going to bed matters not. am unable to conclude from the evidence that there is anything to be taken from this incident that demonstrates any improper behaviour on the respondent’s part. father is entitled to hug, cuddle, play and wrestle with his children. Our children would suffer greatly if the fathers of this land must be ever fearful of allegations of sexual impropriety and withhold their much needed affection, play and physical contact including hugs, kisses and even pinches. [30] The petitioner’s evidence is that there is recurring theme that the girls only want her to put them to bed. This evidence appears to have been provided as support for the submissions that there are risks the girls need to be protected from. Children may insist that one parent or another only do this or that for myriad of reasons that have nothing to do with inappropriate behaviour. It would be wrong to draw the inference the petitioner suggests. Indeed, as regards this element, the children may be unconsciously adopting their mother’s view that she is the only appropriate person to put the children to bed. [31] have considered the allegations made by the petitioner with care and caution. There is clearly conflict between the parties and the petitioner wants their relationship to end, which she is entirely entitled to do. The proper test is the “risk of harm” test as outlined by Chief Justice McLachlin in Young and more recently discussed in Daya Daya, 2015 ONSC 6240 (CanLII). Allegations of sexual abuse or dangers of sexual abuse based upon speculation, conjecture and suspicion are not to be accepted by the court. See Gerein J. in F.(T.G.) V.(D.S.), 2005 SKQB 401 (CanLII), 270 Sask 284. After considering all of the evidence I am unable to conclude there is a risk of harm. [32] In weighing the risk am fully aware that sexual abuse by parent is among the worst things that can happen to any child. But, balanced against the risk that the petitioner argues exists is the certainty that, if were to wrongly accept her suspicions as justifying protection of the children from their father, the children will suffer the loss of normal relationship with loving father. Being deprived of normal relationship with their father is serious harm and cannot be in the best interests of the children. That is certain harm that the children will suffer. [33] On the one hand are allegations of risk of harm that can only be categorized as possible risk of harm. On the other hand is the certainty of harm to the children that results from denying them normal relationship with their father. In my assessment the magnitude of the latter harm far exceeds the probability adjusted risk of the harm the children might possibly suffer abuse by their father. The Anger Allegations [34] The petitioner provides many examples of anger management issues on the part of the respondent. However s. 16(9) of the Divorce Act directs that the court cannot consider past conduct unless that past conduct is relevant to the ability of the parent to act as parent to the children. [35] Most of the petitioner’s allegations of anger issues are significantly dated. Even the incident with [name of child stated] described at paras. 32 and 33 of the petitioner’s affidavit occurred over two years ago. The respondent acknowledges that in respect of that incident he was expressing frustration, but says he has since learned that hug and encouragement helps both [child’s name stated] and himself to deal with their respective frustrations. None of us are perfect parents and it is not uncommon for parent to be frustrated or even angry with child on occasion. That does mean the parent who sometimes expresses frustration or anger is bad parent or not entitled to parent. The respondent’s affidavit includes evidence that for her part the petitioner has also yelled at the children or given them the silent treatment such that the children feel their mother is mad at them. It would be the rare parent or spouse who has not on at least some occasions been angry. When we do wrong we apologize and strive to do better in the future. [36] The “[name of child stated]” incident above occurred before the respondent’s acceptance that he suffers from ADD. It was before he was taking medication for his ADD and before he had undertaken the extensive counselling outlined in his affidavit. In the more recent and relevant time periods the respondent has: i. Accepted that he suffers from ADD, takes medication for it and his understanding of the effect of ADD has helped him in anger management. accept his evidence that he is in fact compliant with the prescribed medications in preference to the petitioner’s conclusions that he is not compliant; ii. He is involved in continuing counselling with both qualified professionals as well as individuals within his church community to help him deal with such issues; iii. He says he is appropriately managing his frustrations and to minimize conflict with the petitioner he will withdraw to his room in the basement. [37] While the petitioner gave evidence of the fear she has of the respondent, do not find this evidence compelling. The evidence as whole satisfies me that the respondent has been making his bedroom and living space in the basement of the house at the petitioner’s request or insistence since 2015. Since early 2016 she has been asking him to vacate the family home. These are not the actions of spouse who lives in fear of partner. The respondent appears to have been largely compliant with what the petitioner has asked of him but his position is that he was not prepared to vacate the family home unless there is parenting agreement. Yet in her affidavit she states that she is extremely fearful of the respondent’s reaction once he is served with her application for exclusive possession and reviews the contents of her affidavit. The facts do not support an allegation that she fears the respondent and more to the point that the children are in fear of their father. [38] Given that: i. The parties have effectively been separated since 2015, albeit living in the same house; ii. The respondent has acceded to the petitioner’s request that he make his bedroom in the basement; iii. The respondent has taken employment, at the petitioner’s insistence or encouragement, with the consequence that he cannot continue as stay-at-home dad; iv. The petitioner has been asking the respondent to vacate the house for year and the respondent’s response was that he was prepared to do so if they can reach parenting agreement; v. The respondent has taken significant efforts since 2014 to deal with the concerns the petitioner has been expressing to him including stopping viewing pornography, installing the Covenant Eyes software on his computer and phone to provide assurances of the same; vi. The respondent accepts he has ADD, takes medication for the same and continues with regular counselling to deal with various issues, all of the above has occurred in context where there is no evidence of single occasion of physical threat being made or physical force being used. There is no evidence of any specific incidence of uncontrolled angry and out of control behaviour in the last two years. I conclude that the petitioner’s stated concerns of fear of the respondent to such a degree that he should be excluded from the family home or that put the children at risk of harm are not supported by the evidence and are unreasonable. [39] The conclusion that draw from the evidence as whole is that the respondent is doing all he can to accommodate the petitioner’s demands while ensuring that he continues to have the opportunity to parent the girls. Parenting and Possession of the Family Home [40] The applications came before me as the designated case management judge. without notice order of exclusive possession was obtained on August 18, 2016 and the respondent was required to vacate the family home as result. When the matter came before me had the benefit of the respondent’s affidavit, which was not before the judge granting the ex parte order. While not stated in the ex parte order, it is clear that the intent of that ex parte order was that it was to operate until the specifically contemplated application with notice could be heard by this court. [41] The family home is joint property and both the petitioner and the respondent are entitled to enjoy it. Neither is entitled to exclusive possession unless judge of this court sees fit to grant such an order having regard to those matters listed in s. of The Family Property Act. First and foremost of those considerations are the interests of the children. For the reasons given above do not find the allegations of pornography and masturbation addictions or the suggested risk of sexual abuse of the children by the respondent are justification or proper basis to exclude the respondent from the family home or such as to give the petitioner an enhanced right to possession over the respondent. have found there is no realistic risk to the children in the various allegations made. [42] As regards the anger allegations, for the reasons outlined above do not accept this evidence as basis to exclude the respondent from the family home and grant the petitioner exclusive possession. [43] Having concluded the above my focus must then turn to what is in the best interests of the children in the circumstances. The Best Interests of the Children [44] In her application the petitioner takes the position that it is in the best interests of the children that they continue to reside in the family home and be parented there exclusively by her. Absent other overriding considerations, it is in the children’s best interests that they continue to reside in the family home. Continuing to live in the family home will provide stability and level of comfort that would be severely compromised by the children having to periodically reside with another parent, particularly when one of the parents does not presently have the capability to establish proper home in which to parent the children. [45] On all of the evidence am satisfied that both parents are loving and concerned parents who will provide appropriate care notwithstanding that they clearly have different standards as to what are permissible activities, what is the required level of supervision, what level of assistance should be provided regarding school homework and the like. am also satisfied that it is unlikely that the parties can continue to both reside in the family home with the children. [46] Based upon their respective past parenting activities I am satisfied that it would not be in the children’s best interests for one parent to be classified as or be the primary parent. The principle of maximum contact is particularly applicable and workable in the circumstances of this case and I am satisfied that it is, at this time and in the present circumstances, in the best interests of the children that their parenting be shared on an equal basis. [47] Both parents have considerable flexibility in their work schedules. There is an existing caregiver who will be present in the family home to assist the parents while they are working. The children are now both of school age. [48] In her application the petitioner suggested that the respondent could simply move into vacant rental property that the parties own jointly. That opportunity is of course equally available to her and the financial resources that she has available to do so would make that very viable option for her. The same cannot be said of the respondent. [49] In the circumstances I have concluded that on an interim basis the best interests of the children are best served by a parenting regime sometimes called a nesting arrangement. The level of conflict that now exists between the parties, exasperated by the petitioner’s without notice application and the consequent ejection of the respondent from the family home satisfies me that, absent an understanding between the parties, it is no longer feasible for the parties to co-exist within the family home. [50] However both the petitioner and the respondent are presumptively entitled to the right of equal possession. The right of equal possession can be accommodated by nesting arrangement and it is my conclusion that nesting arrangement serves the present best interests of the children. [51] When delivered an interim order in open court on Friday, September 2, was attempting to remedy as quickly as possible the harm caused to the children by the peremptory removal of the respondent from the family home by the without notice order of August 18, 2016. concluded that the sooner the father was reintroduced back into the children’s lives, the easier it was going to be for normal relationship to be re-established. Accordingly gave an interim order from the bench that implemented nesting arrangement the next day. also specified that in my written decision might amend, modify or expand on the orders made in open court. The reasons for my decision are set forth above. My modified orders follow. Conclusion [52] I order as follows: a. The without notice order of August 18 granting the petitioner exclusive possession of the family home is terminated effective as of the time that so ordered in open court on September 2, 2016; b. The parties shall have joint custody of the children [name of child stated] and [name of child stated]; c. On an interim basis until further order of this court the parties shall share the parenting of the children on an equal basis on nesting arrangement within the family home; d. Under that nesting arrangement each of the parties shall be entitled to exclusive possession of the family home during their assigned periods of parenting; e. The nesting arrangement shall commence with the respondent parenting the children, in the family home, for the week commencing at noon on Saturday, September 3, 2016 until Sunday September 11, 2016 at noon. Thereafter the parties shall alternately parent for the following weeks until further order of this court with the changes in possession occurring at noon of each Sunday unless and to the extent otherwise agreed to by the parties in writing; f. The respondent shall not view or access pornography of any form or through any medium during any period of time when he is parenting the children; g. The respondent shall take any medications prescribed for his ADD in accordance with the instructions of his physician and continue with his current counselling; h. The petitioner shall be entitled to exclusive occupation of the bedroom she occupied in the family home and may place lock on the door. The respondent shall not enter this bedroom whether locked or not; i. The respondent shall be entitled to exclusive possession of the bedroom he occupied in the lower level of the family home and may place lock on this door. The petitioner shall not enter this room whether locked or not; j. Each of the parties are responsible for the purchases of groceries and household consumables used during their respective weeks of parenting. Each shall ensure that such staples of the kitchen and bathroom that are exhausted during their stay are restocked before their respective Sunday noon departures; k. Each of the parties shall ensure that the family home is clean, orderly and maintained to level consistent with what has historically been the practice; l. While periods of exclusive possession of the family home by the parties has been ordered, if the parties agree in writing, that they will revert to shared occupation of the family home and file that agreement with the court, then the exclusive possession aspects of this order may be suspended; m. Unless counsel for the parties are in agreement that it is not required, they shall schedule through the Registrar’s office return of this matter before me the week of October 10, so that refinements to the nesting order made may be considered or other applications counsel may see fit to bring can be considered. [53] award the respondent costs of $2,000 in any event of the cause to be payable by the petitioner within 30 days. These costs are awarded because it is my conclusions that: a. The without notice application was inappropriately and unnecessarily brought and when all of the evidence is considered have concluded that the August 18, 2016 order should not have been granted; b. The petitioner has not succeeded in her application for exclusive possession or supervised access only; c. The respondent has succeeded in his application that there be shared parenting and to set aside the exclusive possession order; d. Counsel for the petitioner failed, due to misunderstanding as to the adjourned date, to attend on September and thus counsel for the respondent was in attendance on both September and 2. “B. Scherman” J.

HELD: The court found that both parties were significantly involved in the day-to-day parenting of the children such that a conclusion that one parent or the other was the primary caregiver could not be made. The court also found that the respondent responded positively and appropriately to the petitioner’s concerns regarding masturbation and pornography. The respondent indicated that he had not watched pornography since December 2014 and that software on his cell phone and computer provide assurances that he had not watched pornography to the petitioner. The petitioner did not dispute that evidence. The court could not reasonably give weight to the petitioner’s opinion evidence regarding the respondent’s alleged addictions. The court listed numerous problems with the petitioner’s evidence of addiction. The court was unable to conclude that there was a risk of harm to the children caused by the respondent. With respect to the petitioner’s allegation of the respondent’s anger management problem, most of the incidents were dated. The respondent had since taken anger management counselling, accepted that he suffers from ADD, and began taking medication for ADD. The court held that it was in the best interests of the children to continue to reside in the family home and that it would not be in their best interests for one parent to be classified as or be the primary parent. It was also in the children’s best interests that their parenting be shared on an equal basis. A nesting arrangement was found to be in the best interests of the children. The court ordered that the parties would have joint custody of the children and each party had exclusive possession of the family home when they were enjoying their assigned periods of parenting. The parents would alternate weeks living in the family home with the children.

b_2016skqb297.txt

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 153 Date: October 5, 2011 Information: 41350483 Location: Moose Jaw, Saskatchewan Between: Her Majesty the Queen and Erdan John Huseini Appearing: Mr. Brian Hendrickson, Q.C. For the Crown Mr. Robert Fielding For the Accused DECISION M.T. GORDON, [1] Erdan John Huseini is charged that on or about the 12th day of July, A.D. 2010, at or near Moose Jaw, Saskatchewan, did operate motor vehicle on street, road, highway or other public place in manner that is dangerous to the public, contrary to section 249(1)(a) of the Criminal Code. [2] The Crown called one witness, Moose Jaw peace officer Cst. Sheldon McNaughton. The evidence is straightforward and basically uncontradicted. [3] Cst. McNaughton was driving west on Thatcher Drive in Moose Jaw. Cst. McNaughton, qualified radar operator, had calibrated his unit at the start of his morning shift and was satisfied it was in proper working order. [4] At approximately 8:00 a.m., the officer observed black Mustang vehicle accelerate quickly from red light at the intersection of Thatcher Drive West and Woodlily East. The police officer was stopped behind the Mustang. Both vehicles were travelling west. The police officer observed the Mustang accelerate for two to three blocks, and the officer locked in what appeared to be the Mustang’s greatest speed, at one hundred and forty kilometres an hour in sixty kilometre zone. There was one other vehicle beside the Mustang which was left behind when the Mustang accelerated. [5] The Mustang was already slowing down as it was approaching the controlled intersection of 9th Avenue N.W. and Thatcher Drive. There was no indication that the driver of the Mustang slammed on the brakes. Rather, the vehicle slowed down substantially prior to the police officer activating the emergency lights. [6] At this controlled intersection, there is church on one corner, school on the northeast corner and walking path to the playground area of the school on the north side. [7] Thatcher Drive is fairly open road between Main Street and 9th Avenue N.W. There are two lanes of traffic each way from Main Street to the Thatcher intersection with 4th Avenue. The posted speed limit is fifty kilometres an hour to 4th Avenue N.W. and then sixty kilometres. Woodlily Drive East and West entrances intersect Thatcher Drive, as well as the access roads Blue Sage Drive and Avens Road on the north side. On the south side of Thatcher, 4th Avenue comes to T-intersection. [8] The officer testified that Thatcher is fairly open stretch of road. There is bend on Thatcher as it turns into two lanes. [9] The officer testified there is no shoulder, but on cross-examination agreed that the shoulder is narrow as Thatcher Drive becomes two lanes. [10] On cross-examination the officer also agreed that the sidewalk is ten to fifteen metres off of the road and not connected to the pavement. There is school and unfenced playground approximately one hundred to one hundred and fifty metres north off Thatcher. There are condominium units well back from the road. [11] However, the officer agreed that Mr. Huseini still had open road ahead of him. He could not recall if there was any vehicle traffic waiting to enter onto Thatcher going west. [12] The officer noted heavy traffic eastbound on Thatcher at that time of day. [13] The Mustang was still accelerating and travelling greater than the speed limit. It was at this point, on the two lane portion west of the 4th Avenue intersection, that the officer locked in the vehicle speed at one hundred and forty kilometres an hour. [14] The Mustang stopped when signalled to do so by the flashing lights of the police vehicle one block east of Thatcher and 9th Avenue N.W. There was no abrupt stopping or slamming on the brakes. [15] The driver of the Mustang was identified as the accused. He stopped his vehicle without any problems and was polite and cooperative. He was remorseful. He was charged for dangerous driving and given an Appearance Notice to appear in Court. [16] The only question before the Court is whether the evidence provides proof beyond reasonable doubt that the driving was dangerous pursuant to s. 249(1)(a) of the Code. [17] In R. v. Beatty, 2008 SCC (CanLII), [2008] S.C.R. 49, the Supreme Court of Canada, after an extensive review of the differences between civil and criminal standards of negligence, stated the test for establishing the necessary actus reus and mens rea of dangerous driving. Madam Justice Charron stated the test as follows at paragraph forty-three: (a) The Actus Reus The trier of fact must be satisfied beyond reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in manner that was dangerous to the public, having regard to all the circumstances including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place. (b) The Mens Rea The trier of fact must also be satisfied beyond reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required [page 77] mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to marked departure from the standard of care that reasonable person would observe in the accused’s circumstances. Moreover, if any explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused. [18] The driving must constitute marked departure from the standard of care of reasonable, prudent person in the accused’s situation. [19] As the Court notes in Beatty, supra, it is the manner of driving that must be considered. It is question of degree. [20] The length of time of the impaired driving may be brief to sustain conviction. Speed is factor to consider in all of the circumstances. Courts have convicted for dangerous driving when the excessive speed has been found too great for the driver to avoid unexpected events. [21] In R. v. Graham, 2009 SKPC 25 (CanLII), Judge Toth provides good sampling and review of decisions in Saskatchewan, Alberta and British Columbia. [22] review of these cases lead to the following conclusions: 1. Have the prerequisites been established in order that the radar evidence be admitted. 2. Dangerous driving requires marked departure from that of reasonably prudent driver. 3. The basis of liability for dangerous driving is negligence. marked departure from the civil standard is required. It is the conduct of the accused that is the critical element. 4. The length of time of the alleged dangerous driving is not the determining factor. 5. Speed alone can, in certain circumstances, be characterized as dangerous driving. [23] The evidence is not in dispute. The accused was driving at top speed of one hundred and forty kilometres an hour as determined by Cst. McNaughton, operating his radar unit. The posted speed limit in this area is sixty kilometres an hour. [24] The accused was driving on Thatcher Drive, busy main roadway on the north side of Moose Jaw. The weather was clear and road conditions were good. There was only one other vehicle in addition to the police unit in the area, westbound, which was left behind when the accused accelerated. In the two to three blocks between the intersecting roads of Woodlily to 4th Avenue N.W., there were no other vehicles in-between the police vehicle and the accused’s Mustang. The eastbound traffic was heavy at 8:00 a.m. The officer described this portion of Thatcher as “fairly open road”. However, side roads intersect with Thatcher Drive in the area; being Woodlily East, 4th Avenue N.W., Woodlily West and Blue Sage Drive. There are no homes or businesses that have direct access onto Thatcher in this area. [25] That being said adopt the words of my colleague Judge Toth in R. v. Graham, 2009 SKPC 25 (CanLII), at paragraph forty-one as follows: However, where vehicle is travelling at speed more than double the posted 50 km/h limit, where cars and pedestrians are ordinarily present, danger accompanies. The ability of the driver to respond safely to any pedestrian, cyclist or vehicle entering onto Albert Street from the various feeder streets and avenues would be impaired. Any loss of control would result in serious damage, and possibly injuries for the driver and passengers. The accused was driving dangerously. [26] In the within case, the police officer described that there was bend in the road which adds to the danger. The accused’s vehicle was travelling one hundred and forty kilometres per hour, well over twice the posted speed limit in this portion of Thatcher Drive one lane each way. The eastbound traffic was heavy. This is substantially different than driving at this speed on four lane highway, where the lanes of traffic are separated and the speed limit is one hundred and ten kilometres an hour. In this case, the driving is within the confines of the city. One has to accept the posted speed limit is sixty kilometres an hour for good reason. The road it not constructed for greater speeds. [27] The driving, as in Graham, did not last long. The officer noted that the accused appeared to be slowing down. The accused stopped for the police officer without slamming on his brakes. [28] The police officer testified that Mr. Huseini stated he was driving foolishly and that was not normal for him. There was no other evidence as to an explanation for the excessive speed. The only conclusion that the Court can draw is that this driving action was planned and deliberate. Therefore, the mens rea is inferred from the driving conduct. [29] can reach no other conclusion other than the accused voluntarily undertook to drive his vehicle and accelerate to this rate of speed on this stretch of road. While the speed of one hundred and forty kilometres per hour was for a short period of time, in my view such conduct is a “marked departure” from the standard expected for a reasonably prudent driver. do not have any reasonable doubt that the accused was driving dangerously. Mr. Huseini is guilty as charged. Dated at Moose Jaw, Saskatchewan, this 5th day of October, 2011. M.T. Gordon,

The accused was charged with dangerous driving. The evidence established that the accused was observed driving a black Mustang that accelerated quickly from a red light. The police officer observed the vehicle accelerate over a period of two to three blocks and used radar to clock the vehicle's top speed at 140 km/hr. The posted speed limit is 60 km/hr. The intersection was near a church and school yard. There is a bend in the street near where this speeding occurred. HELD: The accused was convicted of dangerous driving. The accused was travelling well over twice the posted speed limit for that portion of roadway. The bend in the road adds to the danger. The accused was driving within the confines of a city and his actions were planned and deliberate. His conduct is a marked departure from the standard expected of a reasonably prudent driver.

2011skpc153.txt

R.C. MILLS IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 049 Date: March 30, 2012 Information: 24335371 Location: Moose Jaw, Saskatchewan Between: Her Majesty the Queen and Leopold Therrien Appearing: Mr. Rob Parker For the Crown Mr. Jeff Deagle For the Accused DECISION M.T. GORDON, [1] Leopold Therrien is charged as follows: that between January 1, 1983 and December 31, 1991, at Willow Bunch, Saskatchewan, and Regina, Saskatchewan, and Winnipeg, Manitoba, did commit sexual assaults on Leanne Eger contrary to provisions of the Criminal Code. [2] And further, that between January 1, 1989 and December 31, 1991, at Willow Bunch, Saskatchewan and Winnipeg, Manitoba, did commit sexual assaults on Nicole Eger, contrary to provisions of the Criminal Code. [3] Mr. Therrien, with the advice of counsel, elected to be tried in this Court and entered guilty pleas on August 10, 2011. Pre-Sentence Report and Electronic Monitoring Assessment was ordered and sentencing was adjourned to November 9, 2011, and then to November 23, 2011. Counsel advised at that time that there was significant divergence on some of the facts. The Crown requested sentencing hearing pursuant to section 724(3)(e). The accused agreed. This decision deals only with my findings as result of this sentencing hearing. [4] In R. v. Gardiner (1982), 1982 CanLII 30 (SCC), 68 C.C.C. (2d) 477, the Supreme Court of Canada stated that: It should also be recalled that plea of guilty, in itself, carries with it an admission of the essential legal ingredients of the offence admitted by the plea, and no more. Beyond that any facts relied upon by the Crown in aggravation must be established by the Crown. If undisputed, the procedure can be very informal. If the facts are contested the issue should be resolved by ordinary legal principles governing criminal proceedings including resolving relevant doubt in favour of the offender. [5] hearing to resolve disputed sentencing facts is commonly referred to as “Gardiner Hearing”. The procedure set out in Gardiner is now codified into section 742(3) of the Criminal Code. [6] In R. v. Poorman, 1991 CanLII 2759 (SK CA), [1991] S.J. No. 274, 66 C.C.C. (3d) 82, the Saskatchewan Court of Appeal adopted the direction in R. v. Boulet, 1990 CanLII 7762 (SK CA), 85 Sask. R. 93, which is now stated in section 724(3) that where there is substantial conflict in the facts, the Court must hold formal sentencing hearing with the onus on the Crown to prove the aggravating facts beyond reasonable doubt. [7] This procedure is quoted with approval in R. v. Malnowski, 2007 SKCA 33 (CanLII) and R. v. Tonido-Yuiiti, 2010 SKCA 81 (CanLII). [8] There are three aggravating factors that the Crown asks this Court to find, namely: 1) that the sexual assaults were numerous, 2) that the accused touched the victims directly on their skin and not just over their clothing, and 3) that there was digital penetration by the accused of both victims. [9] As stated above, the law is clear, that the Crown must prove each of these aggravating factors beyond reasonable doubt. [10] The Crown called both victims to testify, namely Leanne Eger and Nicole Eger. The Defence called Leopold Therrien to testify. [11] The first aggravating factor the Crown asks this Court to find is the frequency of the assaults. [12] In his closing submissions, counsel for Mr. Therrien stated there was no real issue with the frequency of the assaults. [13] However, in cross-examination it was noted Defence counsel suggested to the victims that the assaults did not take place as often as each of them related. [14] Leanne Eger testified the assaults started when she was four years old and living in Regina, and ended when she was eleven or twelve years old. She recounted incidents at Mr. Therrien’s home in Willow Bunch and that they occurred more than once per visit. She estimated the assaults occurred hundreds of times. She does not remember ever being alone with Mr. Therrien without this conduct occurring. [15] Nicole Eger testified that she and her sister would visit Mr. Therrien at Christmas, weekends, and summer holidays. Nicole could not say the frequency of the assault but she cannot recall times with Mr. Therrien when these incidents did not occur. [16] Mr. Therrien acknowledged touching both victims at various locations, quite few times. On cross-examination he agreed it was over long period of time, five to six years. He acknowledged that it would happen more than once day, whenever he saw the girls. He could not say the girls were wrong. [17] From all of the evidence, I am satisfied beyond a reasonable doubt that both victims were sexually assaulted by Mr. Therrien on numerous occasions. I am satisfied that these sexual assaults were a common occurrence on every occasion Mr. Therrien was in the company of the girls. [18] Therefore, it is clear that Mr. Therrien’s conduct was not an isolated incident or even restricted to few occasions. find that the sexual assaults occurred on every occasion the victims were in his presence at Willow Bunch, Regina and Winnipeg. [19] The Crown asks the Court to find that Mr. Therrien touched the victims under their clothing. [20] Nicole Eger testified about an incident in Winnipeg when Mr. Therrien touched her inside her underpants. She was downstairs playing games on the computer when Mr. Therrien put his hands inside her pants and rubbed her clitoris. Nicole testified that Mr. Therrien took her hand as they walked to the couch where he again touched her under her underpants. She was ten or eleven years old at the time. [21] Nicole testified that at each incident Mr. Therrien would start with putting quick hand down her pants. She recalled being at Mr. Therrien’s home in the bedroom behind the kitchen. Again, Mr. Therrien put his hand underneath her underwear. Nicole testified that it was always the same, whether she was with Mr. Therrien in the cellar, in the bedroom or wherever. [22] Leanne Eger testified that Mr. Therrien had direct contact with her. She provided details of several incidents when this occurred. She recalled an incident in Regina when she was four years old. She was wearing coral nightgown with panties underneath. He touched her over top of her panties and then had direct skin on skin contact with her vagina. [23] Leanne testified that most of the incidents occurred at Mr. Therrien’s home in Willow Bunch. She recalled time in the laundry area, which was somewhat private, when Mr. Therrien was “....kissing in her mouth”, hand up her shirt fondling her breasts, underneath her underwear. Mr. Therrien would make her touch, skin on skin, his erect penis. [24] Leanne recalled another time was at the golf course where Mr. Therrien grabbed her breasts and slid his hands down the front of her pants. [25] Leanne estimated that approximately half of the incidents involved direct skin on skin contact with Mr. Therrien. [26] Mr. Therrien testified, admitting that he touched both of the victims quite few times but always over top of their clothes. He denied or did not recall the specific incidents that Nicole and Leanne described. He testified he “...never did it as she described”, the golf course incident never happened; he never exposed his penis. [27] On cross-examination, when pressed by the Crown, he says the direct skin contact might have happened. When confronted with the witness statement he provided to Cst. Rick Hutchinson of the Coronach RCMP (voluntarily admitted), he acknowledged he replied that he had touched the girls under their clothing. [28] He agreed he touched Leanne’s breasts under her clothes. [29] Again, when questioned further by the Crown, Mr. Therrien admitted he could not remember all the times. He has no specific recollection and can’t say for sure he did not touch the girls directly. Again, in his statement to the police he said: “yeah, touched her bottom once her vagina”. [30] Mr. Therrien cannot remember. accept this is due to the passage of time, the fact he was the abuser and consciously or unconsciously he wants to put these incidents out of his mind. It is safe to say that is normal human reaction. [31] When cross-examined as to specific incidents and his statement, Mr. Therrien admitted that he could not recall exactly, that it might have happened or it did happen. Mr. Therrien suggested that his statement might be different from his testimony as he has had more time to think about things. In my view, that is exactly what has happened. Over time Mr. Therrien has softened the more disgusting aspects of his behaviour. [32] Finally, in my view, it just does not make any sense that there would not be fondling or touching directly on the victims’ skin given the number of incidents and that he slipped his hand under their top or down their pants. [33] Again, I am satisfied beyond a reasonable doubt that Mr. Therrien touched Nicole and Leanne under their clothing on many occasions. The victims have testified and provided some detail with respect to these instances. The victims testified where the incidents occurred and that he felt them directly on their breasts, and vagina and bottoms. [34] The final issue for the Court to determine is whether there was digital penetration. Wikipedia defines digital penetration as vaginal fingering of the vagina and may involve one or more fingers. [35] Again, review of the evidence is that both victims testified on at least one occasion this occurred. Leanne testified that on the incident that will refer to as the basement/cold room incident, Mr. Therrien, under her pants, put his hand inside her underwear and put his fingers inside her. Again, in the laundry room area, she testified he had his finger inside her. Leanne described that Mr. Therrien would undo his pants, expose his penis, have her touch his penis, all the while breathing heavy. Then he would finish, do up his clothes and walk away. She also described that he would kiss her hard on the mouth trying to get his tongue in her mouth. [36] On cross-examination she acknowledged that she had never consulted medical doctor as result of Mr. Therrien’s actions. However, she recalled being taken to doctor in Regina when she was four or five years old. She thought it was something to do with her vagina. Leanne also recalled laying on the bathroom floor and her mother putting cornstarch on her vaginal area. [37] Nicole Eger testified as to an incident in the Therrien home in Willow Bunch, in bedroom behind the kitchen. This victim stated that Mr. Therrien had his hands underneath her underwear, rubbing her. He also put his finger inside her. This occurred many times. It was always the same. Mr. Therrien would put his hands inside her clothes, rub and touch her breasts, and rub his erect penis against her. [38] On cross-examination she stated that Mr. Therrien would rub her fast and hard and repeated that he was inside her. When she had her first sexual experience, she recalled this clearly. [39] Mr. Therrien denied that digital penetration occurred. He also denied that he ever had an erection or that he exposed his penis. However, in cross-examination, as with the other factors, Mr. Therrien really is unable to recall with any certainty many details. He agreed that the voluntary statement he gave to the police shortly after his arrest is accurate. In that statement he admitted to touching Leanne underneath her clothes. [40] The Crown submits the Court must consider the issue of reliability of the witnesses. Both witnesses testified and provided sufficient detail such as location, what they were wearing, or what was going on. There were inconsistencies which is not surprising given the age difference of the victims and their many years of silence. As well, it shows the victims did not get together to ensure every detail was the same. [41] The Crown argues that the victims do, however, tell the same story, which is repeated sexual abuse by Mr. Therrien which occurred over number of years. The Crown notes that both victims testified that there was digital penetration. [42] The Crown concluded by noting that Mr. Therrien denied the egregious portions of his conduct and only admitted the bare facts to justify the guilty pleas. The Crown submits that Mr. Therrien is not being forthright and in the final analysis the Court ought not to believe his denials. [43] The Defence submits there is insufficient evidence of digital penetration. The Defence argues that there was only general evidence given by the victims describing Mr. Therrien rubbing their vagina area. For example, Nicole testified that Mr. Therrien slid his hand down her pants and rubbed her. As well, Leanne also testified in general terms and her evidence does not coincide with Nicole’s. [44] There is no medical evidence and no corroboration of digital penetration. [45] Mr. Therrien testified that it did not happen. Given the generalities of the victims’ evidence on this aspect, it is argued that Mr. Therrien cannot be expected to recall specific event. [46] There is no evidence this happened frequently. The Defence argues that due to the fraility of memory the Court has to be careful not to make assumptions and fill in the gaps. In conclusion, the Defence submits the Court should have reasonable doubt concerning digital penetration. [47] The determination of credibility does not involve the Court opting for one version of events over another. The Crown must prove its evidence is credible. There is no onus on the accused. Even if the Court prefers the evidence of the Crown, it still must consider whether the evidence of the accused raises reasonable doubt. [48] The test is well known and set out by the Court of Appeal in R. v. McKenzie (1996), 1996 CanLII 4976 (SK CA), 141 Sask. R. 221 (Sask. C.A.). [49] After considering all of the evidence and applying the McKenzie analysis, do not find the accused credible. Even accounting for the passage of time, and the difficulties with recalling events of many years ago, do not accept the accused’s denial that there was no digital penetration. The evidence of the victims is sufficiently credible to prove beyond a reasonable doubt that digital penetration occurred. accept that both victims described only couple of incidents when this occurred. However, the test is not the number of times digital penetration occurred. The victims have no doubt recalled the incidents of digital penetration as this more severe abuse would stand out from the other occasions. [50] In my view, this finding is supported by the rest of the evidence. Each victim described in general terms the abuse inflicted by Mr. Therrien and then provided examples and details of specific occasions. The evidence establishes that the abuse occurred over several years, many times. For example, Nicole could not say the frequency of the above, but does not recall it ever not happening. Leanne provided more detailed descriptions of various incidents of abuse. She testified that the abuse occurred more than once per visit and that the accused took every chance he could to get more. [51] I conclude that the accused got bolder as time passed and took more liberties and chances. Mr. Therrien may well have started by feeling and rubbing the victims over their clothing when they were sitting on his knee. As the victims got little older and Mr. Therrien little bolder, he went to feeling and rubbing the girls under their clothing, and kissing them hard on the mouth. His penis became erect. He breathed heavily. He tried to dry hump Nicole. He was always calm and in control. Mr. Therrien admitted on cross-examination that it is possible he was sexually aroused. [52] believe Mr. Therrien, when he testified that he cannot remember these incidents. He may well have repressed these incidents. Considering the allegations now, as man in his eighties, he of course cannot or will not believe he would have done such things. [53] In summary, find that the Crown has proved beyond reasonable doubt the three facts that find to be aggravating factors pursuant to section 724(3)(e) of the Criminal Code. Dated at Moose Jaw, Saskatchewan, this 30th day of March, 2012. M.T. Gordon,

The accused plead guilty to two counts of sexual assault. The victims were his granddaughters. The assaults were alleged to have occurred between 1983 and 1991. A sentencing hearing was held because there was significant disagreement on the facts. The Crown alleged three aggravating factors: 1) that the sexual assaults were numerous, 2) that the accused touched the victims directly on their skin and not just on their clothing and 3) that there was digital penetration by the accused on both victims. HELD: At a sentencing hearing, the Crown must prove aggravating factors beyond a reasonable doubt. The Court held that the two victims were sexually assaulted by the accused on numerous occasions over a period of a number of years. The Court was satisfied these sexual assaults were a common occurrence on every occasion that the accused was in the company of his granddaughters. The Court found that the accused touched the victims under their clothing on numerous occasions and that there were a couple of occasions that the accused digitally penetrated each victim. Finally, the Court concluded that the accused got bolder over time and took more liberties and chances with his victims.

9_2012skpc49.txt

nan IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 080 Date: May 4, 2012 Information: 31111424 Location: Regina Between: Her Majesty the Queen and Gary W. Rookes Appearing: Ms. Codi L. Chudyk For the Crown Mr. Rod C. Simaluk For the Accused JUDGMENT M. HINDS, BACKGROUND [1] On February 26, 2010 at Regina, Saskatchewan, Gary Rookes was charged with the following offences: (1) while his ability to operate a motor vehicle was impaired by alcohol or a drug, operate a motor vehicle, contrary to section 253(1)(a) of the Criminal Code. (2) Without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(3)(a) of the Criminal Code, to provide samples of his breath for analysis, contrary to section 254(5) of the Criminal Code. (3) Operate motor vehicle while disqualified from doing so, contrary to section 259(4) of the Criminal Code. [2] The matter proceeded to trial. Constables Tyler Bacon and Grant Campbell testified for the crown. Gary Rookes testified for the defence. previously acquitted Mr. Rookes on the charge of drive while disqualified, as there was no evidence before the court regarding the status of Mr. Rookes’ driver’s licence on February 26, 2010. The issue before the court is whether the GiO cycle which Mr. Rookes was operating is a motor vehicle as defined by the Criminal Code. Evidence Constable Tyler Bacon [3] Constable Bacon has been member of the Regina Police Service for four and one half years. On February 26, 2010, at 11: 20 p.m. he was on general patrol duty in his police vehicle which was proceeding westbound on Saskatchewan Drive. As the police vehicle approached the intersection of Broad Street and Saskatchewan Drive, Constable Bacon observed driver on moped proceed northbound on Broad Street against red light. Constable Bacon testified that the moped had an electric motor under the seat. [4] Constable Bacon activated the lights on the police vehicle and followed the moped. Mr. Rookes was operating the moped. Constable Bacon testified in chief that he observed that Mr. Rookes was dragging his feet while driving the moped. He also testified that the moped quickly came to stop underneath railway overpass on Broad Street. Constable Bacon testified that after Mr. Rookes stopped the moped, he appeared to steady himself, dismounted the moped and stumbled backwards toward wall adjacent to the roadway. [5] Constable Bacon spoke to Mr. Rookes. He asked for his driver’s licence or some other identification. Mr. Rookes told him that he had neither with him. Constable Bacon asked Mr. Rookes to accompany him back to his police vehicle. Constable Bacon testified that he observed Mr. Rookes to stumble and sway from side to side as he walked to the police vehicle. He also testified that once Mr. Rookes reached the police vehicle he appeared to steady himself against it. [6] Mr. Rookes got into the back of the police vehicle. Constable Bacon testified in chief that he did not notice distinct smell of alcohol coming from Mr. Rookes. Constable Bacon made an approved screening device demand of Mr. Rookes at 11:21 a.m. Constable Bacon testified that he suspected Mr. Bacon was impaired by alcohol based upon his earlier observations that Mr. Rookes (1) ran red light (2) dragged his feet (3) stumbled backwards after getting of his moped and (4) steadied himself against the police vehicle. [7] Mr. Rookes blew into the approved screening device twice. His first breath lacked sufficient pressure to activate the device. His second breath registered fail result on the device. [8] As result of the fail result, Constable Bacon arrested Mr. Rookes for driving while impaired and drive while disqualified. Constable Bacon then read Mr. Rookes his rights and warnings and made breath demand upon Mr. Rookes. Constable Bacon transported Mr. Rookes to the Regina Police station where he met Constable Campbell, the intoxilizer technician. [9] On cross examination, Constable Bacon agreed that on February 26, 2010 the road conditions in Regina were generally dry with some wetness on the roadway beneath the railway overpass on Broad Street. Constable Bacon agreed that Mr. Rookes could have coasted down Broad Street as that roadway dips beneath the railway overpass. Constable Bacon also confirmed the accuracy of paragraph of his incident report which stated that the moped electric bicycle operated by Mr. Rookes had pedals which had been removed. Constable Bacon did not take any photographs of Mr. Rookes’ moped. Constable Grant Campbell [10] Constable Campbell has been member of the Regina Police Service since 2007. He was working as an intoxilizer technician during the evening of February 26, 2010. Constable Campbell was dispatched to the police “breath room” to prepare the intoxilizer and deal with Gary Rookes who was suspected of being an impaired driver. He met Constable Bacon and Mr. Rookes at the breath room. Constable Bacon told Constable Campbell that he had previously made breath demand on Mr. Rookes. Constable Campbell testified that he made the following observations respecting Mr. Rookes: (1) strong smell of beverage alcohol was coming from him (2) he leaned on counter in the breath room (3) he swayed when he walked (4) he had glassy, watery eyes and (5) he had slurred speech. [11] Constable Campbell testified regarding the various steps he took to prepare the intoxilizer device for Mr. Rookes’ breath samples. He testified the device was working properly. Constable Campbell testified that he gave Mr. Rookes instructions on how to provide proper breath sample. Constable Campbell testified that on three separate occasions Mr. Rookes did not blow into the mouthpiece of the intoxilizer device with sufficient force to provide proper breath sample. He warned Mr. Rookes that he could be charged with refusing to provide breath sample. He subsequently charged Mr. Rookes with refusal after the device timed out. The defence did not cross examine Constable Campbell. Gary Rookes [12] Gary Rookes is 57 years of age. During the evening of February26, 2010 Mr. Rookes went to friend’s home to watch television. He testified that his mode of transportation that evening was his mechanical assist GiO cycle. Mr. Rookes presented four photographs of GiO cycles to the court which he obtained from the manufacturer. The photographs were marked as exhibits 1, 3. Mr. Rookes testified that the photographs are true depictions of his GiO bike. Each of the photographs show GiO bikes equipped with pedals. [13] Mr. Rookes testified that his GiO bike was equipped with pedals and 500 watt electrical motor which was situated in the hub of the rear wheel. He added that battery is located under the seat of the GiO bike which is rechargeable and powers the 500 watt engine. Mr. Rookes further testified that he operated his GiO bike on February 26, 2010 by pedalling it. He testified that normally his GiO bike could also be powered (assisted) by the 500 watt electric motor by engaging switch. There is also switch used to turn the headlights and turn signals on the GiO bike. Mr. Rookes testified that on the evening of February 26, 2010 he did not make use of the electric motor assist on his GiO bike because the electric motor was not working. [14] Mr. Rookes testified that he subsequently took his GiO bike to Ebikes Regina where the electric motor was repaired. He produced receipt he obtained from Ebikes Regina dated March 15, 2011 in the sum of ninety dollars which was marked as exhibit -4. The receipt has the words “wire repair” written on it. [15] Mr. Rookes further testified that no driver’s licence is required to operate his GiO bike and in addition he was not required to put licence plate on the GiO bike. In support of his claims Mr. Rookes filed with the court document he obtained from the manufacturer revealing another photograph of GiO 500 watt electric scooter equipped with pedals. This document was marked as Exhibit D5. D5 states that the GiO 500 E-Scooter is classified as an electric bicycle, since pedals can be used. D5 also describes the GiO 500 E-Scooter as power assisted bicycle. Mr. Rookes also tendered an email that his sister Debbie Rooke sent to his lawyer, Mr. Simulak setting out the specifications for GiO 500 E- Scooter (Exhibit D6). [16] On cross examination, Mr. Rookes testified that he drank two or three beers while visiting friend from 4:00 p.m. until the time he left his friend’s home and began his homeward journey. Mr. Rookes was adamant that on the evening of February 26, 2010 he was pedalling his GiO bike as he was proceeding northbound on Broad Street. He further testified as he entered the intersection of Saskatchewan Drive and Broad Street the traffic signal turned from green to amber. He admitted that as he proceeded through the intersection the traffic signal turned red. However, Mr. Rookes maintained that had he stopped his GiO bike earlier, it would have been in the middle of the intersection. [17] Mr. Rookes also testified that he verified with Saskatchewan Government Insurance publication entitled Motor Cycle Handbook, that operators of electric assist cycles are not required to have driver’s licences. DEFENCE POSITION [18] Counsel for the accused takes the position that the GiO 500 watt E-scooter which Mr. Rookes was operating on February 26, 2010 is not motor vehicle as defined by the Criminal Code and hence Mr. Rookes should be acquitted of the charges before the court. CROWN POSITION [19] The Crown argues that GiO 500 watt E-scooter which Mr. Rookes was operating on February 26, 2010 is motor vehicle as defined by the Criminal Code and that Mr. Rookes should be convicted of the charges of impaired driving and refusal to provide breath sample. [20] Section of the Criminal Code reads, in part, as follows: “motor vehicle means vehicle that is drawn, propelled or driven by any means other than muscular power, but does not include railway equipment; [21] Section 253(1)(a) of the Criminal Code reads, in part, as follows: Every one commits an offence who operates motor vehicle (a) while the person’s ability to operate the vehicle is impaired by alcohol or drug; [22] Sections 253(2), (3)(a)(i), (3.3) and (5) of the Criminal Code reads, in part, as follows: (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 the peace officer may, by demand, require the person to comply with paragraphs (a) and (b), in the case of alcohol: (a) to perform forthwith physical coordination tests prescribed by regulations to enable the peace officer to determine whether demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and (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, (3.3) If the evaluating officer has reasonable grounds to suspect that the person has alcohol in their body and if demand was not made under paragraph (2)(b) or subsection (3), the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable, sample of breath that, in the evaluating officer’s opinion, will enable proper analysis to be made by means of an approved instrument. (5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with demand made under this section. [emphasis added] [23] As in any criminal trial, the prosecution bears the burden to prove guilt beyond reasonable doubt. The Crown must prove each essential element of the offence charged beyond reasonable doubt. Mr. Rookes is presumed innocent and bears no burden to prove anything. After considering the whole of the evidence, if there is reasonable doubt on any element of the offence, he must be found not guilty. [24] In this case the Crown must prove that Mr. Rookes GiO bike was motor vehicle, as defined by section of the Criminal Code. Put another way the Crown must prove on February 26, 2010 Mr. Rookes GiO bike was drawn, propelled or driven by any means other than muscular power. [25] This case requires several factual determinations including: (1) whether there were pedals on Mr. Rookes’ GiO bike that night (2) whether Mr. Rookes was pedaling the GiO bike that night and (3) whether the electric motor on GiO bike was working that night and propelling or driving the bike. [26] The evidence at trial is contradictory respecting whether there were pedals on Mr. Rookes GiO bike. The Crown relies on the evidence of Cst. Bacon that he did not observe pedals on the GiO bike. Mr. Rookes on the other hand maintains his GiO bike was equipped with pedals which he used and was the sole means of propulsion. [27] In this case have applied the test set out by Mr. Justice Tallis of the Sask. Court of Appeal in R. v. McKenzie (1996) 1996 CanLII 4976 (SK CA), 141 Sask. R. 221(C.A.) respecting the doctrine of reasonable doubt as it applies to the issue of credibility and reliability of witnesses, which is as follows: 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 [28] Applying step one of the test do not believe all of the evidence of the accused, hence am not obligated to acquit him. At times during Mr. Rookes’ testimony was left with the impression that his testimony sounded somewhat rehearsed particularly respecting his consumption of alcohol earlier that day. do note, however, that critical aspect of Mr. Rookes’ testimony concerned his GiO bike. find that he provided this evidence in straight-forward, credible manner. While it would have been preferable if he provided photographs of his own GiO bike and called the repair person who fixed the wire on his GiO bike, the reason for the absence of such evidence was not explored in cross examination. Thus, while find there are some problems with the evidence of Mr. Rookes, cannot dismiss it as being incredible. [29] There are also some problems with the evidence of Constable Bacon. One particularly troubling aspect of his evidence concerns the lack any detailed observations respecting Mr. Rookes’ GiO bike. While Constable Bacon clearly testified that Mr. Rookes went through red light on his moped there is no evidence regarding the speed at which Mr. Rookes was traveling or whether the front, back or running lights were on at any time. There is also no evidence that the electric motor on the GiO bike was operational that evening. I also note that Constable Bacon testified that he observed Mr. Rookes was dragging his feet while driving the moped. Without further detail, this observation, in my view, is consistent with Mr. Rookes pedaling the GiO bike with both of his feet being close to the ground, rather than resting on the floor board as the electric motor powered the GiO bike. [30] In this case after careful consideration of all the evidence, am unable to decide whom to believe as to (1) whether there were pedals on the GiO bike (2) whether Mr. Rookes was pedaling his GiO bike as his sole means of propulsion and (3) whether the electric engine was operable on February 26, 2010. [31] As result am of the view that the Crown has failed to prove that Mr. Rookes was operating motor vehicle on the evening of February 26, 2010. Hence, acquit him of the charges of operating motor vehicle while impaired by alcohol or drug and refusing to provide breath sample. CONCLUSION [32] I find Gary Rookes to be not guilty of the charges before the court. M.J. Hinds,

The accused was charged with two counts being driving while impaired contrary to s. 253(1)(a) and refusal to provide a breath sample contrary to s. 254(5) of the Criminal Code. The Court had earlier acquitted the accused on the charge of driving while disqualified as there was no evidence regarding the status of the accused's driver's licence. At issue was whether the GiO cycle or moped which the accused was operating was a motor vehicle as defined by the Criminal Code. The accused asserted that his GiO bike was operated that night by pedaling it as the electric motor was not working and asserted that driver's licence was not required to operate the GiO bike nor was he required to put licence plate on it. HELD: The accused was found not guilty of the charges before the Court. There was no evidence that the electric motor on the GiO bike was operational that evening and the officer testified that he observed the accused dragging his feet while driving the moped.

e_2012skpc80.txt

nan 2000 SKQB 515 C.C. A.D. 1999 No. 974 J.C. S.C. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: HER MAJESTY THE QUEEN and MARCELLE DAPHNE BROOKS RESPONDENT C.L. Carlson for Her Majesty the Queen R.A. Nordal for Marcelle Daphne Brooks JUDGMENT MATHESON J. November 14, 2000 [1] On September 8, 1999, black Lincoln Town Car was stopped by member of the R.C.M.Police on highway No. near Maple Creek, Saskatchewan; 28.3 pounds of marihuana was discovered in the trunk of the Lincoln. [2] The driver of the Lincoln was Randall Wesley Fair ("Fair"). The registered owner of the Lincoln Marcelle Daphne Brooks ("Brooks") was in the front passenger seat. Both individuals were charged with trafficking in marihuana and possession of marihuana for the purpose of trafficking. Fair was found guilty of possession of marihuana for the purpose of trafficking. The other charge against him was judicially stayed. Brooks was found not guilty on both counts. [3] The Crown has now applied, pursuant to s. 16(1) of the Controlled Drug and Substances Act, S.C. 1996, c. 19 (the "Act") for an order forfeiting the Lincoln to Her Majesty in Right of Canada. [4] Brooks has, in effect, applied pursuant to s. 20(4) of the Act for an order declaring that her interest in the Lincoln is not affected by any forfeiture order. FORFEITURE APPLICATION [5] Section 16(1) of the Act states: 16(1) Subject to sections 18 and 19, where person is convicted of designated substance offence and, on application of the Attorney General, the court is satisfied, on balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall (a) in the case of substance included in Schedule VI, order that the substance be forfeited to Her Majesty in right of Canada and disposed of by the Minister as the Minister thinks fit; and (b) in the case of any other offence-related property, (i) where the prosecution of the offence was commenced at the instance of the government of province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law, and (ii) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by such member of the Queen's Privy Council for Canada as may be designated for the purposes of this subparagraph in accordance with the law. [6] "Offence-related property" is defined in s. 2: "offence-related property" means any property, within or outside Canada, (a) by means of or in respect of which designated substance offence is committed, (b) that is used in any manner in connection with the commission of designated substance offence, or (c) that is intended for use for the purpose of committing designated substance offence, but does not include controlled substance or real property, other than real property built or significantly modified for the purpose of facilitating the commission of designated substance offence; [7] Brooks does not dispute the assertion by the Crown that the Lincoln is within the definition of "offence-related property". [8] Section 19(1) of the Act requires that, before forfeiture order is made pursuant to s. 16(1), notice must be given to any person who appears to have valid interest in the property. [9] Section 19(3) provides the authority for the court to make an order of relief from forfeiture: 19(3) Where court is satisfied that any person, other than (a) person who was charged with designated substance offence, or (b) person who acquired title to or right of possession of the property from person referred to in paragraph (a) under circumstances that give rise to reasonable inference that the title or right was transferred for the purpose of voiding the forfeiture of the property, is the lawful owner or is lawfully entitled to possession of any property or any part of any property that would otherwise be forfeited pursuant to an order made under sub-section 16(1) or 17(2) and that the person appears innocent of any complicity in an offence referred to in paragraph (a) or of any collusion in relation to such an offence, the court may order that the property or part be returned to that person. [Emphasis added] [10] Brooks has acknowledged that she is not entitled to relief from forfeiture pursuant to s. 19(3), being "a person who was charged with designated substance offence". Prima facie, then, Her Majesty is entitled to an order of forfeiture pursuant to s. 16(1). [11] But Brooks has submitted that s. 19(3) contravenes the guarantees contained in s. 11(d) 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 (to be presumed innocent until proven guilty according to law) and s. 12 of the Charter (not to be subjected to any cruel and unusual treatment or punishment). [12] It is not necessary to address the Charter submissions with respect to s. 19(3), however, because Crown counsel consented to Brooks' submission being viewed as an application by her for relief from forfeiture pursuant to s. 20. RELIEF FROM FORFEITURE [13] Section 20(1) permits any person who claims an interest in property forfeited pursuant to s. 16(1) to apply for relief from forfeiture. Expressly excluded from applying is person who was convicted of the designated substance offence in relation to which the property was forfeited. [14] Section 20(4) prescribes the powers of the court upon the hearing of an application for relief from forfeiture: 20(4) Where, on the hearing of an application made under subsection (1), the judge is satisfied that the applicant (a) is not person referred to in paragraph (1)(a), (b) or (c) and appears innocent of any complicity in any designated substance offence that resulted in the forfeiture of the property or of any collusion in relation to such an offence, and (b) exercised all reasonable care to be satisfied that the property was not likely to have been used in connection with the commission of an unlawful act by the person who was permitted by the applicant to obtain possession of the property or from whom the applicant obtained possession or, where the applicant is mortgagee or lienholder, by the mortgagor or lien-giver, the judge may make an order declaring that the interest of the applicant is not affected by the forfeiture and declaring the nature and the extent or value of the interest. [15] Brooks has deposed as to the ownership of the Lincoln. It has not been questioned that she is the owner. [16] Brooks has also deposed: 5. On September 8, 1999, Randall Wesley Fair (hereinafter referred to as "Randy") and were travelling from Calgary, back to our home in Ontario. We had stayed in hotel the night of the 7th. As was usual, Randy loaded our luggage in to my Lincoln, without my assistance. Randy was driving the Lincoln and was passenger in the front seat. The Lincoln was stopped by the Royal Canadian Mounted Police near Maple Creek, Saskatchewan. 6. member of the RCMP, now known to me to be Constable Baulkham, came to my passenger side window of the Lincoln and spoke to Randy and I. It was discovered that Randy did not have valid drivers' license and as such, Constable Baulkham required Randy to go with him to the RCMP cruiser behind the Lincoln. Constable Baulkham came to my passenger side window again and at that point stated that he saw something on the floor of the front seat and picked up and showed me some "crumbs" of marihuana. do admit to having socially used marihuana and that small amounts of personal use marihuana have been in the Lincoln at times. Therefore can not say for certain that the crumbs had not fallen on the floor from my belongings or clothes. was not aware of the presence of these crumbs of marihuana and have no idea how long they had been there or where they were from. 7. As result of finding the "crumb" of marihuana, Constable Baulkham proceeded to search the entire Lincoln. When the trunk was searched, two tubs containing marihuana were located. did not have any knowledge of the presence of these tubs or of the marihuana inside of them. 9. have never been convicted of drug related offence in my entire life. am law abiding citizen. If had known that Randy intended on transporting marihuana would not have allowed him to put the marihuana in my car. Certainly, would never have traveled[sic] in the car if had known the marihuana was in my trunk. 14. do not believe that should be punished, by losing my investment in my Lincoln, when have not been convicted of any offence. It is my understanding that was innocent of the crimes was alleged to have committed unless proven guilty. was acquitted at trial and again state do not believe should be punished by losing my Lincoln. 15. As stated above, had no knowledge of the presence of the marihuana in the trunk of the car. If the Crown is successful in its application for forfeiture, will be punished for something had absolutely no knowledge or control over, feel this is cruel and unusual punishment. [17] In dismissing the charges against Brooks, the trial judge stated: Insofar as the accused Brooks is concerned, I'm aware of the fact that she was the owner of the motor vehicle and there's some evidence that she may have had knowledge of the existence of the marihuana, but I'm not satisfied beyond reasonable doubt that there's evidence that she consented to the marihuana being in the possession of her co-accused. Consequently, the charges against her must be dismissed. [18] The statement that "there's some evidence that she may have had knowledge of the existence of the marihuana" was based on the following testimony of Constable Baulkham: p. 44 My Lord, while we were up at the vehicle and we refer to Constable Nash, Ms. Brooks and myself at this time Ms. Brooks and myself had conversation and do ask couple of questions, if there was am just trying to think oh, if there was any other drugs in the vehicle and Ms. Brooks stated, "No, just the marihuana", and then asked her how much or asked her how much was there and she wasn't sure how much marihuana was there. So when asked if there was any other drugs in the vehicle, the only other comment recall her making was, "No, just in the blue tubs". The 28.3 pounds of marihuana contained in the plastic bags were in two plastic blue tubs stacked one on top of each other in the trunk of the Lincoln. [19] There was no evidence adduced at trial to rebut the foregoing testimony of Constable Baulkham. [20] Section 20(4) does not require Brooks to prove either beyond reasonable doubt or on balance of probabilities her innocence of any complicity in the designated substance offence and that she exercised all reasonable care. It is sufficient for Brooks to merely satisfy the judge that she "appears innocent". [21] Brooks and Fair were travelling together. They had stayed overnight on September 8, 1999, at hotel in Calgary. It appears from the affidavit of Brooks that this was not their first overnight stay. She has deposed that "as was usual, Randy loaded our luggage in to my Lincoln. .". [22] Coupled with the unchallenged testimony of Constable Baulkham, quoted above, it is quite impossible to conclude that Brooks "appears innocent of any complicity" in the offence of which Fair was convicted and that she "exercised all reasonable care to be satisfied" that the Lincoln was not likely to be used in the commission of the offence. ALLEGED CHARTER VIOLATIONS [23] Section 11(d) of the Charter states" 11 Any person charged with an offence has the right nan (d) to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal; [24] Section 11 of the Charter applies only when person has been charged with an offence. There is no charge against Brooks at this time alleging the commission of an offence. [25] Section 12 of the Charter states: 12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. [26] In Steele v. Mountain Institution, 1990 CanLII 50 (SCC), [1990] S.C.R. 1385 it was stated that it would only be on rare and unique occasions that court will find sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether sentence is disproportionately long is very properly stringent and demanding. lesser test would tend to trivialise the Charter. [27] The "test" was enunciated by Lamer J. in R. v. Smith, 1987 CanLII 64 (SCC), [1987] S.C.R. 1045 at 1073: In assessing whether sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender. The other purposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus not relevant at this stage of the inquiry. This does not mean that the judge or the legislator can no longer consider general deterrence or other penological purposes that go beyond the particular offender in determining sentence, but only that the resulting sentence must not be grossly disproportionate to what the offender deserves. If grossly disproportionate sentence is "prescribed by law", then the purpose which it seeks to attain will fall to be assessed under 1. Section 12 ensures that individual offenders receive punishments that are appropriate, or at least not grossly disproportionate, to their particular circumstances, while s. permits this right to be overridden to achieve some important societal objective. [28] In R. v. Goltz, 1991 CanLII 51 (SCC), [1991] S.C.R. 485 it was stated that when determining whether any punishment is grossly disproportionate to the offence, the court should consider, inter alia, whether the punishment is necessary to achieve valid penal purpose. [29] The societal purpose of the Act, and the forfeiture provisions thereof, was alluded to by Whitman J.A. in R. v. Gisby, 2000 ABCA 261 (CanLII), [2000] A.J. No. 1145 QL (Alta. C.A.): ¶19 The CDSA [Controlled Drug and Substances Act] was enacted by Parliament to combat the illicit drug industry. review of the CDSA and in particular, the provisions related to the forfeiture of property, indicate that the CDSA does so both through punishment and deterrence. The forfeiture provisions are punitive to the extent that they deprive one of offence-related property, broadcasting the message that Canadian society regards designated substance offences with abhorrence. But they also introduce an element of deterrence in relation to designated substance offences. In this respect, the forfeiture provisions attach very real cost to the business of drug crime directly equivalent to the monetary value of the offence-related property that is subject to forfeiture, thus raising the stakes associated with the commission of those offences. ¶20 The forfeiture provisions serve another purpose. In addition to punishment and deterrence, they help prevent or at least reduce the likelihood of future offences by removing from the illicit drug industry property which, by virtue of the definition found at s. 2(1), is being used to facilitate the commission of designated substance offence. Provided that all requisite conditions are met, property that has been used to facilitate such offences will be forfeited and thus cannot be used to aid the perpetration of future offences. [30] Quite simply, Parliament has authorized forfeiture of conveyances utilized to transport controlled drugs and substances. That surely cannot constitute cruel and unusual treatment, or punishment, of the offender. But what about those persons who may own, or have an interest in, the forfeitable conveyance and have not been convicted of the designated substance offence, or even have any knowledge of the offence? [31] If person has an interest in forfeitable conveyance, but there was no possible means by which that person could have determined that the conveyance might have been utilized to commit the offence, should that person's interest be forfeited? If so, that person might very well be deemed to have been subjected to cruel and unusual treatment. [32] But the Act distinguishes between three types of persons who might own, or have an interest in, conveyance which is "offence-related property". [33] Firstly, the interest of person who has been convicted of the offence is forfeitable pursuant to s. 16(1). [34] Secondly, by virtue of s. 19(3) the interest in the property of person who has neither been convicted nor charged with the offence will not be affected if the person "appears innocent of any complicity" in the offence. Most applications would presumably arise under this category: commercial lessors of motor vehicles; family member permitting another family member to utilize motor vehicle with no knowledge whatever that it might become "offence-related property", etc. [35] The third category encompasses someone in the position of Brooks: she was unable to apply pursuant to s. 19(3) because she was charged with the offence which gave rise to the forfeiture application. As result of being in the third category, she must satisfy the judge hearing the application that not only does she "appear to be innocent of any complicity" but that she also "exercised all reasonable care to be satisfied that the property" was not likely to have been used in connection with "the designated substance offence". [36] Thus, forfeiture is not, except with respect to an offender, arbitrary. Those "apparently" innocent of any complicity of an offence will not have their property interest forfeited. And those who are charged with designated substance offence, but not convicted, are entitled to relief from forfeiture if they are apparently innocent of complicity in the offence and exercised reasonable care regarding the property. [37] If relief from forfeiture was only available upon proof, by some standard, of innocence of complicity in the offence, forfeiture might then be deemed to be cruel and unusual treatment or punishment. But it is only necessary to satisfy judge that the applicant is "apparently innocent" to avoid forfeiture. [38] In view of the provisions available in the Act to obtain an order of relief from forfeiture, it cannot be concluded that empowering a court to grant an order of forfeiture constitutes cruel and unusual treatment or punishment of any person who may have an interest in the property sought to be forfeited. Consequently, the application of Brooks must be dismissed and an order of forfeiture will issue pursuant to s. 16(1) of the Act.

The Crown applied for an order forfeiting a vehicle pursuant to s.16(1) of the Controlled Drug and Substances Act. The registered owner applied for an order declaring her interest in the vehicle was not affected by any forfeiture order. The owner was passenger when 28.3 pounds of marijuana was discovered in the trunk of her Lincoln. She was found not guilty of trafficking and possession of marijuana for the purpose of trafficking. The driver was found guilty of possession for the purpose of trafficking. The trafficking charge against him was judicially stayed. HELD: An order of forfeiture issued pursuant to s.16(1). The application for relief was dismissed. 1)It was not necessary to address the Charter submissions with respect to s.19(3) because Crown counsel consented to the respondent's application being viewed as an application for relief from forfeiture under s.20. 2)It was impossible to conclude the respondent 'appeared innocent of any complicity' in the offence for which the driver was convicted and that she 'exercised all reasonable care to be satisfied' that the Lincoln was not likely to be used in the commission of the offence. 3)Section 11 of the Charter applies only when person has been charged with an offence. There was no charge against the respondent at this time. 4)The Act distinguishes between three types of persons who might own, or have an interest in, conveyance which is 'offence-related property': the interest of person convicted of the offence is forfeitable pursuant to s.16(1); if the person has been neither convicted nor charged and appears innocent of any complicity in the offence; someone charged with the offence which gave rise to the forfeiture application (as here). The forfeiture is not, except with respect to an offender, arbitrary. In view of the provisions available under the Act to obtain relief from forfeiture it cannot be concluded that empowering a court to grant an order of forfeiture constitutes cruel or unusual punishment.

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J. G.B. A.D. 1997 No. 1703 J.C.S. IN THE QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: LONG TRACTOR INC., DALCO ENTERPRISES LTD., MELGREEN EQUIPMENT LTD., DAVID LONG, LINDSAY LONG, PAT LONG, THELMA LONG, and DEPUTY ATTORNEY GENERAL OF CANADA RESPONDENT J.P. Flanagan and R.M. Verret for the applicants G. Berscheid for the respondent JUDGMENT SMITH J. December 24, 1997 This is an application pursuant to s. 232 (4)(c)of the Income Tax Act, R.S.C. 1985, c. 1 (5th Suppl.), forthe determination of whether the applicants have solicitor-client privilege in respect of 25 documents for which RevenueCanada has sought disclosure. An in-camera hearing was held on November 19, 1997. The individual applicants are husband, David Long, his wife, Thelma Long, and their two adult sons, Lindsay Long and Pat Long. The corporate applicants are companies in which various of the individual applicants are principal shareholders and/or directors. The documents at issue were originally in the possession of the Melfort office of the accounting firm Meyers Norris Penny Co. (hereafter "the accounting firm") which has acted as accountants for all of the applicants for all of the period at issue in this matter. On July 28, 1997, officials from the Department of National Revenue served Requirement to Provide Information and Documents upon the accounting firm, pursuant to s. 231.2 of the Income Tax Act, demanding the production of documents in the possession of the accounting firm described as follows: a) All documents relating to i) Transfer from David Long to Thelma Long and Lindsay Long of certain shares of Dalco Enterprises Ltd. on or about April 15, 1988. ii) The incorporation of Long Tractor Inc. on or about June iii) The incorporation of Tobin Tractor Inc. on or about September 11, 1991. iv) The gift of shares in Long Tractor Inc. from David Long to Pat Long on or about November 29, 1991. v) An agreement for sale of shares of Tobin Tractor Inc. by John Parbst to David Long. vi) An agreement of sale of shares in Tobin Tractor Inc. by David Long to Pat Long and Lindsay Long on or about November 30, 1992. b) All documents prepared in the tax planning and analysis that was used to determine that the corporations were or were not associated. The documents identified in the Requirement were forwarded by the accounting firm to the applicants' solicitor, who then forwarded those documents, other than ones for which solicitor-client privilege is claimed, to the Saskatoon office of the accounting firm for production to Revenue Canada. This application relates to the balance of the documents, for which privilege is claimed. These were placed under seal and were subsequently produced to me prior to the hearing. An inventory describing each of the 25 documents was filed with the applicants' brief of law as "Schedule `A' ". At issue is the extent to which solicitor-clientprivilege can be asserted in relation to communications withand documents prepared by the applicants\' accountants. At the outset of the hearing, the respondent conceded the validity of the privilege claimed in respect of documents identified as items number 14, 15, 23 and 24 in the inventory of documents. These documents are all letters or copies of letters from the applicants' solicitors addressed to some of the applicants which had been provided by the applicants' solicitors to the accounting firm. The applicant, in its turn, abandoned its claim for privilege in respect of items number 1, 2, and 18 and also enclosures included with the letters described in items number and 10. It is therefore ordered that the applicants' lawyer make these documents available for inspection or examination by the Department in accordance with sub-para. 232(5)(b)(ii) (B) of the Act. These documents were handwritten notes in the possession of the accounting firm summarizing the share value and fair market value of assets of Dalco Enterprises Ltd. as of November 30, 1997, and notes relating to Tobin Tractor Inc. dated June 21, 1991, all prepared by the accountants other than for the purpose of obtaining legal advice on behalf of the applicants, and copies of agreements and promissory notes executed by various of the applicants. Document 10, for which privilege is claimed, is letter from the solicitor of the applicants to member of the accounting firm dated February 4, 1992. The enclosures, for which the claim of privilege is abandoned, are declaration of gift dated November 29, 1991 and minutes of meeting of the directors of Long Tractor Inc. held November 29, 1991. Examination of these documents for which the claim for privilege is abandoned indicates that no claim is asserted in relation to agreements executed by the applicants, or to notes or memoranda of members of the accounting firm in relation to the applicants which the applicants concede were not prepared by the accountants for the purpose of seeking legal advice from solicitor. It is therefore clear that the applicants do not rely for their claim of privilege exclusively upon the confidentiality of the professional relationship between the accounting firm and its clients. They have taken the position that they are prepared to disclose those documents in the possession of the accounting firm, including those that were created in the context of professional relationship of confidence between accountant and client, which do not fall into one of the following categories: (1) Correspondence from the applicants' solicitors to the applicants. (This category is no longer at issue, for the respondent has conceded that privilege attaches to the documents which fall into this category.) (2) Correspondence between the applicants' accountants and the applicants' solicitors. (3) Notes and memoranda prepared by the applicants' accountants which record and report meetings in which some of the applicants, their solicitors and the accountants were all present. (4) Correspondence from the applicants' accountants to the applicants which relate directly to legal advice that was being sought by the applicants from their solicitor. LAW The central issue in this application is whether and to what extent solicitor-client privilege applies to documents prepared by third parties in this case, the clients' accountants. It is common ground between the parties in this case that while an accountant may, as matter of professional ethics, be required to keep communications and other information concerning clients confidential, no legal privilege attaches to such communications or information solely on the basis of this relationship. Thus, in order to sustain the claim of privilege, the applicants must show that the documents at issue are protected by solicitor-client and not merely accountant-client privilege. This appears to be clearly established in the cases, even though it has been acknowledged that client may, in many cases, look to his or her accountant rather than to solicitor for advice in relation to the law of taxation. See Baron et al. v. The Queen (1990), 91 D.T.C. 5055 (F.C.A.), appeal dismissed on other grounds, 1993 CanLII 154 (SCC), 93 D.T.C. 5018 (S.C.C.). The respondent takes the position that solicitor- client privilege does not extend to communications to or documents prepared by third parties unless the documents at issue were prepared in the context and for the purpose of anticipated litigation. It is common ground that no litigation was contemplated in this case. Although solicitor-client privilege is defined in s. 232(1)(e) of the Income Tax Act, it is clear that this section leaves the issue before me to be resolved in light of the common law test for privilege: (e) "Solicitor client privilege" means the right, if any, that person has in superior court in the province where the matter arises to refuse to disclose an oral or documentary communication on the ground that the communication is one passing between the person and the person's lawyer in professional confidence, except that for the purposes of this section an accounting record of lawyer, including any supporting voucher or cheque, shall be deemed not to be such communication. The distinction between the "litigation" or "lawyer's brief" privilege and the privilege which applies to communications between solicitor and client for the purpose of obtaining legal advice other than in the context of litigation is clearly established in the cases. In International Minerals Chemical Corp. (Canada) Ltd. v. Commonwealth Insurance Co. (1990), 1990 CanLII 7315 (SK QB), 84 Sask. R. 117 (Q.B.), Halvorson J. explained the distinction as follows: Legal privilege in this context is of two varieties. Firstly, communications between solicitor and client concerning legal advice are privileged even though litigation may not be contemplated. The rationale for this solicitor-client privilege is to ensure full and confidential disclosure. The privilege extends to communications by agents of the client to the solicitor. Secondly, communications between solicitor and third parties are privileged but only if made for the purpose of prospective litigation. The rationale for this litigation privilege is protection of trial preparation. The privilege extends to like communications between the client, his agent and third parties if made to obtain information for the solicitor. (at p. 118) Some cases have refused to extend solicitor- client privilege to communications between accountant and client or between accountant and solicitor on the basis that solicitor-client privilege never protects third party communications except in the context of anticipated litigation. See Goodman Carr v. Minister of National Revenue, 1968 CanLII 340 (ON SC), [1968] O.R. 814, 70 D.L.R. (2d) 670 (H.C.), relying on principles set out in Wheeler v. Le Marchant (1881), 17 Ch.D. 675. The respondent also relied upon Re Missiaen (1967), 68 D.T.C. 5039 (Alta. S.C.), where the court ruled that solicitor-client privilege (as opposed to the litigation privilege) does not extend to communications by third parties ("e.g. an accountant to solicitor in answer to an inquiry") (at 5040). The better view, however, is that the privilege may extend to accountant communications where the accountant is acting as agent or representative of the client for the purpose of seeking, receiving or implementing legal advice from solicitor, even absent the context of anticipated litigation. In the passage quoted above, Halvorson J. noted this extension of the privilege. In neither Goodman Carr nor Re Missiaen was the possibility that the third parties were communicating as agents for the clients considered. Where more recent cases appear to diverge is on the question of the circumstances necessary to found the requisite relationship of agency for this purpose. In Re Sokolov, 1968 CanLII 713 (MB QB), [1968] C.T.C. 414, 68 D.T.C. 5266, 70 D.L.R. (2d) 325, for example, the Manitoba Court of Queen's Bench extended the privilege to memoranda with plan of reorganization attached prepared on request by auditors for the clients to submit to their solicitor but denied privilege to suggestions volunteered by the auditors in relation to the same matter. With regard to the former, however, it is important to note that the court quoted with approval this passage from Phipson on Evidence, 10th ed. (London: Sweet Maxwell, 1963), p. 260, para. 604, giving an example of privileged communication: Oral or documentary information from third persons, which has been called into existence by the client for the purpose of submission to the solicitor, either for advice or for the conduct of litigation Although noting some conflict in the cases on this point, Matas J. concluded, "Confining the privilege to cases involving litigation is contrary to the trend of the development of the law of privilege." (at 330) Susan Hosiery Ltd. v. M.N.R., [1969] 69 D.T.C. 5278 (Exchequer Ct. of Can.) is the leading case that attempts to define the scope of solicitor-client privilege in relation to its application to communications between the client's solicitors and its accountants in the context of the provision of the Income Tax Act that is before me. Jackett, P. (as he then was) began by setting out the broad principles that define the scope of legal privilege in light of its perceived purpose: As it seems to me, there are really two quite different principles usually referred to as solicitor and client privilege, viz: (a) all communications, verbal or written, of confidential character, between client and legal adviser directly related to the seeking, formulating or giving of legal advice or legal assistance (including the legal adviser's working papers, directly related thereto) are privileged; and (b) all papers and materials created or obtained specially for the lawyer's "brief" for litigation, whether existing or contemplated, are privileged. In considering the ambit of these principles, it is well to bear in mind the reasons for them. In so far as the solicitor-client communications are concerned, the reason for the rule, as understand it, is that, if member of the public is to receive the real benefit of legal assistance that the law contemplates that he should, he and his legal adviser must be able to communicate quite freely without the inhibiting influence that would exist if what they said could be used in evidence against him so that bits and pieces of their communications could be taken out of context and used unfairly to his detriment unless their communications were at all times framed so as not only to convey their thoughts to each other but so as not to be capable of being misconstrued by others. The reason for the rule, and the rule itself, extends to the communications for the purpose of getting legal advice, to incidental materials that would tend to reveal such communications, and to the legal advice itself. Turning to the "lawyer's brief" rule, the reason for the rule is, obviously, that, under our adversary system of litigation, lawyer's preparation of his client's case must not be inhibited by the possibility that the materials that he prepares can be taken out of his file and presented to the Court in manner other than that contemplated when they were prepared. What is important to note about both of these rules is that they do not afford privilege against the discovery of facts that are or may be relevant to the determination of the facts in issue. What is privileged is the communications or working papers that came into existence by reason of the desire to obtain legal opinion or legal assistance in the one case and the materials created for the lawyer�s brief in the other case. The facts or documents that happen to be reflected in such communications or materials are not privileged from discovery if, otherwise, the party would be bound to give discovery of them. Applying these principles, as understand them, to materials prepared by accountants, in general way, it seems to me (a) that no communication, statement or other material made or prepared by an accountant as such for business man falls within the privilege unless it was prepared by the accountant as result of request by the business man's lawyer to be used in connection with litigation, existing or apprehended; and (b) that, where an accountant is used as representative, or one of group of representatives, for the purpose of placing factual situation or problem before lawyer to obtain legal advice or legal assistance, the fact that he is an accountant, or that he uses his knowledge and skill as an accountant in carrying out such task, does not make the communications that he makes, or participates in making, as such representative, any the less communications from the principal, who is the client to the lawyer; and similarly, communications received by such representative from lawyer whose advice has been so sought are none the less communications from the lawyer to the client. (at 5281-3) (emphases added) Thus, Jackett, P., tying the scope of the privilege in each case to its rationale, clearly extended the solicitor and client privilege (as distinct from the litigation privilege) to communications to or from third party to the extent that the third party could be seen to be acting as the client's agent or representative for the purpose of seeking legal advice, and also extended the privilege to "incidental materials that would tend to reveal such communications" and "working papers that came into existence by reason of the desire to obtain legal opinion or legal assistance". The facts and issues in Susan Hosiery are closely analogous to those before me. As in the present case, that case arose in the context of demand pursuant to the Income Tax Act for productions of documents from the client's auditors. The documents sought included letter from an auditor to the solicitor, letter from the solicitor to the auditor, and the auditor's memorandum of discussions with the solicitor whereby the auditor provided certain information to the solicitor, sought the solicitor's advice regarding certain proposals for arranging the client's affairs, and recorded memoranda of discussions between himself and the client's solicitors. Privilege in these documents was upheld on the basis that the accountants were acting as representatives of the company for the purpose of obtaining legal advice "concerning the setting up of some arrangement such as that that the appellant in fact entered into." Counsel for the respondent in the matter before me argued that Susan Hosiery should be distinguished, however, because the auditor in that case was acting as representative, or agent, of the client claiming privilege in the sense of being conduit for information passing between solicitor and client. The auditor in that case communicated with the solicitor, on the client's instructions, in the absence of the client. In the case before me, some of the applicants were themselves in direct communication with the solicitor and the meetings between the solicitor and the accountants always included some of the applicants as well. The respondent argued that it followed that the accountants, in this case, were not acting as agents or representatives of the applicants for the purpose of communication with the solicitor. This argument, in my view, gives too narrow scope to the principle articulated in Susan Hosiery. In the passage quoted above the learned judge made the point that: where an accountant is used as representative for the purpose of placing factual situation or problem before lawyer to obtain legal advice the fact that he uses his knowledge and skill as an accountant in carrying out such task, does not make the communications any the less communications from the principal, who is the client, to the lawyer. It is clear that the role of "representative" described in that passage is not merely that of conduit of information from client to solicitor. It is clearly recognized that in communicating with the solicitor for the purpose of obtaining legal advice in such contexts as this, the client must of necessity rely upon the expertise of his accountants to explain to the solicitor intricacies of his situation which he may not himself be competent to explain. The accountant therefore speaks as agent or representative of the client because, (a) he is exercising his expertise on behalf of the client to communicate the complexities of the client's factual situation to the solicitor for the purpose of obtaining legal advice for the client, and (b) in so doing, he is acting in relationship of confidence, vis-�-vis, the client, arising out of his professional relationship with the client. In this regard, it is useful to note these comments of Jackett P., explaining why the privilege should extend to communications to and from the auditor in that case: think the Court may take judicial knowledge of the fact that corporations of all kinds are continuously faced with problems as to what arrangements are advisable or expedient having regard to the intricacies of the tax laws and that, while huge corporations have staffs of lawyers and accountants of their own through whom they seek advice of counsel learned in such special areas of practice, smaller corporations employ lawyers and accountants in general practice to act for them in obtaining special advice in connection with such matters. (at 5283) This passage indicates that Jackett P. did not view the auditor as representative or agent merely for the purpose of communication, i.e., as mere conduit, or messenger, as the respondent argues. Clearly the auditor was conveying and receiving information and advice on behalf of the client in relation to matters that were within the auditor's and not the client's expertise. He was not mere messenger. He was representative speaking for the client with regard to aspects of the client's affairs which were within his professional responsibility to the client. This role is not inconsistent with the client's personal presence or involvement in these communications. Whether or not he is personally present, the client relies upon the accountant to accurately convey certain information within his expertise about the client's affairs to the solicitor and to receive and implement the solicitor's advice on behalf of the client. Further, the accountant is clearly in confidential relationship with the client in relation to this role. It is to be noted that Jackett P. also extended privilege in Susan Hosiery to memorandum prepared by the accountants of their meeting with the solicitor and to letter written by the accountant: Having come to the conclusion that the meeting between [the accountants and the solicitor] was part of the process whereby [the accountants], as representatives of the appellant, were obtaining legal advice for the appellant from [the solicitor], and that the appellant is therefore entitled to privilege against producing memorandum of what occurred at that meeting, it seems clear to me that the same privilege extends to answering any questions as to what was or is contained in that memorandum. Finally it follows from my conclusion that [the accountant] was one of the representatives of the appellant for obtaining legal advice that the appellant is privileged from production, or giving evidence as to the contents of, letter written by [the accountant] as part of the process of obtaining such advice. (at 5286) (emphasis added) Susan Hosiery was followed in Southern Railway of British Columbia Ltd, Itel Corp. and Itel Rail Holdings Corp. v. Deputy Minister of National Revenue, Taxation, and Deputy Attorney General of Canada (1990), 91 D.T.C. 5081 (B.C.S.C.) which also upheld the privilege claimed in relation to communications between the client's lawyers and its accountants. In Wolch's Guaranteed Foods Ltd. (Trustee of) v. Wolch (1994), 1994 CanLII 8935 (AB QB), 24 C.B.R. (3d) 268, [1994] W.W.R. 173 (Alta. Q.B.,in Bankruptcy) the Registrar, citing Susan Hosiery, extended solicitor-client privilege to communications to or from the client's accountant which were said to "complement" or "perfect" the legal advice sought and given. Specifically, privilege was granted in that case to two letters from the accountant to the solicitor written at the request of the client and containing accounting advice in relation to the matters upon which the client sought legal advice. The court commented, regarding the first letter: The letter was not only request that documents be prepared, but it also contains accounting advice as to various aspects of the course of action decided upon by the [client]. consider input from the accountant to be accounting information given to [the solicitor] to complement the legal advice given to the [client]. In my view it falls within the scope of communications between solicitor and client, and is protected by privilege. Regarding the second letter the Registrar said: This letter contains accounting advice relative to the matter upon which the [client] sought legal advice from [the solicitor]. In my view it is accounting information required to perfect the legal advice given by [the solicitor to the client]. (at 277) The Registrar also upheld privilege in this case in relation to letter from the solicitor to the accountants "concerning the very matters upon which the bankrupt had sought legal advice." Similarly, in Re Alcan-Colony Contracting Ltd. and M.N.R. (1971), 1971 CanLII 405 (ON SC), 18 D.L.R. (3d) 32 (Ont H. C.), the Court commented: The fact that the communication is directed to an officer or agent of the clients by way of instruction to prepare documents or take certain course of action on behalf of the clients does not bring the matter within the category of communications to third party so as to void the privilege. (at 35) APPLICATION TO THE FACTS IN THIS CASE The documents for which disclosure is sought in this case relate to three separate occasions upon which the applicants sought the advice or assistance of lawyer in relation to proposed transactions. Items #3-8 and 12, relate to advice sought from Melfort solicitor, Mel Annand, in relation to transaction considered and executed in 1988. Items #10 and 11 relate to advice sought from the same solicitor in relation to another transaction considered or executed in 1991. Items #13, 16, 17, 19, 20, 21, 22, and 25 relate to advice sought from Saskatoon solicitor, Nancy Hopkins, Q.C., from early in 1995 through 1996 in relation to some proposed transactions as well as other taxation issues relating to the applicants that arose in the process of working on the proposed transactions. Because the circumstances of these occasions varied somewhat, it is useful to consider them separately. will begin with the most recent of these, those involving consultation with Nancy Hopkins in 1995-6. The affidavit evidence filed indicates that in late 1994 members of the accounting firm advised the applicants that it would be desirable to obtain legal advice in relation to some proposed transactions. Tony Smith, an accountant with the firm, was instructed by the applicants to arrange meeting with Nancy Hopkins. This first meeting took place on February 24, 1995, and second meeting occurred on August 10, 1995. Both included Nancy Hopkins, Tony Smith, and two of the individual applicants, Pat Long and Lindsay Long. The items #14 and #15, for which the respondent concedes solicitor- client privilege, are letter and copy of the same letter from Nancy Hopkins to Malgreen Equipment Ltd., to the attention of Pat and Lindsay Long, dated February 27, 1995, summarizing the first of these meetings. Similarly, items #23 and #24 are letter and copy of the same letter from the solicitor addressed to the attention of Lindsay Long, dated August 11, 1995, summarizing the second meeting. The respondent also concedes that these documents are privileged. Both letters were copied to the accounting firm to the attention of Tony Smith. Smith deposes that he prepared the handwritten notes dated February 24, 1995, and August 10, 1995, which are identified as items #13 and #22, respectively, in the inventory of documents, and that the matters discussed at the February 24 meeting and at the August 10 meeting are the subject of those notes. My review of those notes, in comparison with the solicitor's letters, confirms that they are notes of the matters discussed at the two meetings. Items #16 and #17 are two copies of draft letter from Smith to the solicitor dated March 2, 1995, summarizing the issues discussed at the February 24 meeting. Items 19 and #20 are letter and copy of the same letter from Nancy Hopkins to Tony Smith setting out the solicitor's interim conclusions in relation to legal advice sought from her in relation to taxation and corporate issues involving the applicants. Item #21 is fax transmission from Tony Smith to Rick Rumberger, Melfort member of the accounting firm, dated June 15, 1995. Smith deposes and my examination of this document confirms that the purpose of this letter is to advise Rumberger of the discussions between Smith and Nancy Hopkins involving the legal advice sought on behalf of the Long family. Item #25 consists of handwritten notes dated October 27, 1996, prepared by another Melfort member of the accounting firm, Brent Hoyseth. Hoyseth deposes that he was instructed by Pat and Lindsay Long to provide information and advice relating to the financial and tax position of the applicants to Nancy Hopkins in order to assist her in providing legal advice to the applicants with respect to certain corporate and taxation matters. Item #25 is page of handwritten notes prepared by Hoyseth containing information to be communicated to Nancy Hopkins. It is my conclusion that the accounting firm ingeneral and Tony Smith and Brent Hoyseth in particular, wereclearly acting as agents of the applicants for the purpose ofobtaining legal advice from Nancy Hopkins, in the sense thatthis concept is explained in Susan Hosiery. They were at alltimes acting in a confidential capacity on behalf of theapplicants and on the instructions of the applicants. Smith\'s presence at the meetings between Pat and Lindsay Longand Nancy Hopkins and, even more clearly, his and BrentHoyseth\'s role in relation to the subsequent communicationwith Nancy Hopkins (which did not directly involve theapplicants themselves) was clearly as a representative of theapplicants for the purpose of providing accounting informationpertaining to the applicants which was within theconfidential, special knowledge and expertise of theaccountants, and for the purpose of receiving legal advice onbehalf of the clients. Accordingly, solicitor-clientprivilege extends to the items #16, #17, #19 and #20. While in respect to the two meetings it is true, as the respondent says, that Smith was not acting as mere conduit for communication between solicitor and client, he was clearly providing information about the clients' affairs to the solicitor on behalf of the clients. His handwritten summaries of those meetings (items #13 and #22) are records of meetings which are themselves privileged and confidential. Disclosure of these notes would reveal the detailed substance of the advice sought from and given by the solicitor. Solicitor- client privilege extends to these items. It is my view that the notes prepared by Hoyseth(#25) and the interoffice communication summarizingdiscussions with the solicitor (#21) also fall within thescope of the privilege. In reviewing the variety of documents for which privilege is sought in relation to the consultations with Nancy Hopkins, it is useful to recall the scope of the privilege which Jackett P. was prepared to allow in Susan Hosiery: The reason for the rule, and the rule itself, extends to the communications for the purpose of getting legal advice, to incidental materials that would tend to reveal such communications, and to the legal advice itself. (at 5282) (emphasis added) And: What is privileged is the communications or working papers that came into existence by reason of the desire to obtain legal opinion or legal assistance (at 5282) (emphasis added) These principles clearly support extension of the privilege from disclosure to documents prepared by the client, or by an agent on behalf of the client, in preparation for communication with solicitor, that set out or summarize the very matters upon which legal advice is to be sought. Disclosure of these documents would be tantamount to disclosure of the communication by the client to the solicitor itself, for they would reveal the substance of that communication. It should be noted that while the respondent initially took the position that any privilege attaching to document #21 had been waived because that document was actually disclosed to Revenue Canada by the accounting firm on the instructions of the applicants' solicitor, the respondent subsequently conceded that there was no waiver if that disclosure was inadvertent and asked only for an affidavit setting out the circumstances of inadvertence. Accordingly, this argument was not pursued by the respondent. The documents relating to advice sought from Melfort solicitor Mel Annand in 1988 and 1991 raise some additional complexities. The affidavit evidence filed indicates that Annand's associate was telephoned in January 1988 by Pat Parkinson, then member of the accounting firm, to discuss aspects of the proposed 1988 transaction. Annand then received item #5, letter from Pat Parkinson dated March 30, 1988 and item #6, letter from Ole Ramstead, another member of the accounting firm, dated April 11, 1988. Both letters were written on the instruction of David Long to the accounting firm, to provide information to Annand and to instruct Annand on behalf of Long to proceed with the preparation of documents required to implement the proposed transaction. Items #7 and #8 are letters from Annand to Ramstead in May of 1988 and January of 1989, in confirmation of certain aspects of this transaction. Item #12, letter from Annand to the accounting firm dated January 12, 1995, seeks factual confirmation in relation to the 1988 transaction. In respect of each of these communications, find that the accounting firm was acting as agent for some of the applicants, including David Long, for the purpose of communicating with the solicitor of the applicants for the purpose of obtaining legal advice. Items #10 and #11 are letters from Annand to Ramstead dated February 4, 1992 and July 5, 1994, respectively, both relating to the 1991 transaction. Annand's affidavit deposes that prior to the dates of these letters he had discussions with Dave Long with respect to this transaction and prepared the documentation required to implement the transaction pursuant to his instructions. These letters, he further deposes, like items #7, and 12, were written to the accountants "to ensure that the documentation that had prepared in relation to implement [sic] the said transactions was consistent with the information of [the accounting firm]." The claim for extending the privilege to these letters is less strong than the others, for there is no specific statement that the accounting firm acted as agent for the applicants with respect to the 1991 transaction. The case law makes it clear that when lawyer whose advice is sought seeks factual information from third party, absent the context of litigation, communications of the third party are not protected by solicitor-client privilege unless the third party is acting as an agent of the client for the purpose of seeking legal advice. Nonetheless, it would in my view require an artificial distinction no to extend privilege to these documents. The entirety of the evidence filed establishes the relationship between the applicants and the accounting firm. This evidence easily supports the inference that the solicitor was in this case confirming factual information with the firm as surrogate for the clients. Privilege extends to these documents as well. Items #3 and #4 raise another issue. These are twocopies of the same letter, dated February 26, 1988, from theaccountant Pat Parkinson to Dave Long in which Parkinson setsout the proposal for the 1988 transaction in terms verysimilar to the instructions that were subsequently conveyed tothe solicitor in the accountant\'s letter to Annand of March30, 1988, item # 5. Items #3 and #4 clearly pre-date item #5. Moreover, the February 26 letter is not itself a communicationwith the solicitor and, indeed, appears in substance to beadvice offered by the accountants to the applicants. The respondent argues that this letter does not fall within the agency extension of solicitor-client privilege but is no more than communication between accountant and client for which there is no legal privilege. It argues that when these documents were prepared the authority of the accountants did not include disclosure of this advice to the applicants' solicitor. The applicants argue that Annand's affidavit shows that there had been discussions about the proposed transaction between his office and the accounting firm in January, 1988, before this letter was written. am asked, therefore, to infer that this letter did not arise out of merely accountant-client relationship, but that the accounting firm had been instructed to prepare information and advice needed by the solicitor to prepare documents for the proposed transaction. The letter represented in items #3 and #4, the applicants argue, should be treated as part of the process of obtaining legal advice from the solicitor. The letter at issue, it is said, should be seen as "perfecting" the legal advice given by the solicitor to the client. This argument asks me to draw inferences about the purpose of the February 26 letter that the material filed is not sufficient to support. find that documents #3 and #4 are not protected by solicitor-client privilege. In addition to these considerations regarding items #3-8 and #10-12, the respondent also argues that the material filed is insufficient to indicate which of the applicants claims privilege with respect to these documents. Mel Annand's affidavit deposes that he received instructions in relation to transactions that "involved several of the Applicants". The solicitor-client privilege recognized in s. 232(1), it is argued, is in relation to communication between "the person" and "the person's lawyer". Paragraph 10 of the affidavit of Dave Smith describes the 1988 transaction as involving "several of the Applicants." Therefore, the respondent says, it is not possible for determination to be made about which of the applicants is claiming solicitor- client privilege in relation to particular transaction. do not find this objection to be fatal. The affidavit evidence filed clearly establishes that the accounting firm and each of the solicitors acted for all of the individual and corporate clients. The individual applicants are all members of family. Various of the individual applicants are the directors and/or principal shareholders of the corporate applicants. It is reasonable to infer from the affidavit evidence filed together with the documents at issue themselves, that each of the transactions at issue had the potential to affect the legal situation of all of the individual applicants and all of the corporate applicants in existence at the relevant time. In conclusion, then, I uphold the privilege claimedin relation to all of the documents relating to the legaladvice sought from Nancy Hopkins after January, 1995. This includes items #13, 16, 17, 19, 20, 21, 22, and 25. also uphold the privilege claimed in respect of items #5-8 and #10-12. I do not uphold the claim in relation to items #3 and4. These documents, together with items #1, 2, and 18 and the enclosures included in items #7 and 10, for which the claim for privilege was abandoned, are to be made available for inspection or examination by the Department in accordance with sub-para. 232 (5)(b)(ii)(B) of the Act.

An application pursuant to s232(4)(c) of the Income Tax Act for a determination of whether the applicants have solicitor-client privilege in respect of 25 documents for which Revenue Canada had sought disclosure. The applicants were husband and wife, their two sons and the companies in which they were principal shareholders and/or directors. The documents related to three separate occasions upon which the applicants sought the advice or assistance of a lawyer in relation to proposed transactions. The documents in issue were originally in the possession of their accounting firm. At issue was the extent to which solicitor-client privilege could be asserted in relation to communications with and documents prepared by third parties. HELD: 1)The privilege claimed in relation to all of the documents relating to the legal advice sought after January 1995 was upheld. 2)The claim was not upheld for copies of a letter setting out the proposal for the 1988 transaction. One letter appeared to be advice offered by the accountants to the applicants. 3)The applicants abandoned their claim for privilege with respect to handwritten notes summarizing share value and fair market value of assets which had been prepared by the accountants other than for the purpose of obtaining legal advice. The claim of privilege was abandoned for a declaration of gift and minutes of a director's meeting in 1991. 4)It has been clearly established in case law that even though a client may look to his/her accountant rather than a solicitor for advice in relation to the law of taxation, the applicants must show the documents were protected by solicitor-client privilege and not merely accountant-client privilege. 5)Although solicitor-client privilege is defined in s232(1)(e) of the ITA, the issue had to be resolved in light of the common law test for privilege. 6)Privilege may extend to accountant communications where the accountant is acting as agent or representative of the client for the purpose of seeking legal advice from a solicitor. Recent cases appear to diverge on the question of the circumstances necessary to found the requisite relationship of agency. 7)The accountants were clearly acting as agents for the applicants for the purpose of obtaining legal advice, as was found in Susan Hosiery. They were at all times acting in a confidential capacity on behalf of and on instructions of the applicants. 8)Solicitor-client privilege extended to items of accounting information obtained for the purpose of receiving legal advice. Notes prepared by the accountant and the interoffice communications summarizing discussions with the solicitor also fell within the scope of privilege.

7_1997canlii11172.txt

SUPREME COURT OF NOVA SCOTIA Citation: Longard v. Keel 2011 NSSC 75 Date: 20110218 Docket: Hfx No. 224020 Registry: Halifax Between: Roy E. Longard v. Ronald Harold Keel and Petra Simone Keel Defendants Judge: The Honourable Chief Justice Joseph P. Kennedy Heard: July to 15, 2010, in Halifax, Nova Scotia Counsel: Allen C. Fownes for the Plaintiff D. Mark Gardiner, for the Defendants By the Court: [1] This is dispute about the use of property. [2] Eldred and Borden Longard were brothers and had close relationship. They had joint ownership of family property at Tantallon on public Highway No. and in August of 1942 they exchanged deeds dividing the property into two abutting parcels, both of which were fronted on that highway. [3] Borden's property was adjacent to the Nine Mile River, while Eldred's property was to the east of Borden's. [4] After the division, Eldred continued to maintain garden on Borden's property and he and those accessing his property used driveway that ran from Highway No. across Borden's parcel to Eldred's land. This access road ran adjacent to Borden's house ("the Borden driveway"). [5] That garden and that driveway are central to this action. [6] The Plaintiff, Roy Longard, is Eldred's son and in 1986 he obtained portion of his father's parcel next to Borden's land. For years after his father's death he continued to use "the Borden driveway" to access his property from the highway and continued to maintain the garden on Borden's property that had been his father's. [7] Borden's driveway is not the only access to Roy Longard's property from Highway No. 3. There is another driveway that lies wholly on Roy Longard's land to the east of the disputed access ("the other driveway"). [8] "The other driveway", although not as convenient, has also been used and is used to access the lots that once were Eldred's parcel. [9] "The other driveway" is shown on plan of survey that was created August 11, 1980 and entitled "Plan of Survey showing the lands of Eldrid [sic] and Borden Longard" (Exhibit No. D24). [10] On this plan, "the other driveway" is shown running from public Highway No. onto Eldred Longard's "Lot B" it is referred to as the "existing driveway". [11] Borden Longard transferred his property to the Seventh Day Adventist Church by deed dated June 14, 1995. The Church sold the property to Laurie and Linda Mills by deed dated October 22, 1995. The Mills, in turn, conveyed the property to the Defendants, Ronald and Petra Keel, by deed dated November 22, 1999. [12] The Defendants have shut off "the Borden driveway" to Roy Longard and do not consent to his continued use of the garden on their property. [13] The Plaintiff, Roy Longard, wants to continue to garden on the Keel property and use "the Borden driveway". By this action he claims that he has the right to do both. AS TO THE DRIVEWAY [14] There is clear evidence that after the Longard brothers divided the land and each occupied their respective lots, Eldred and those accessing his property commonly would travel over "the Borden driveway". [15] This use continued uninterrupted after Roy Longard received the portion of Eldred's property and as long as Borden remained on his property and continued when the property was transferred to the church and then to the Mills family. [16] This use of "the Borden driveway" by Eldred and then Roy is testified to by Roy Longard and confirmed by numerous creditable witnesses: this usage is not in dispute. [17] Roy Longard's submits that his use of this driveway as of right is based on two grounds: 1) expressed reservation, and 2) prescription. Reservation [18] Whether there is an expressed reservation is question of fact. [19] The Plaintiff, Roy Longard, submits that in the deed from Eldred Longard to Borden Longard, created when the brothers divided the family property in 1942, Eldred reserved to himself right-of-way over Borden's land which he claims is "the Borden driveway". [20] The description for the land conveyed from Eldred to Borden, aforesaid, reads as follows: Beginning on the eastern line of the Nine Mile River at its intersection with the southern side line of Public Highway leading from Halifax to Margaret's Bay thence easterly along the said southern line of the Public Highway for distance of 222 feet to post thence south 31 degrees 22 minutes west for distance of 611 feet to Juniper Post; thence south 48 degrees 30 minutes west for distance of 288 feet to Juniper Post; thence north 41 degrees 30 minutes west for distance of 19 feet to the middle of the road leading from the Public Highway to the Nine Mile River; thence southerly along the middle of said road for distance of 1134 feet or to the edge of said Nine Mile River, thence up stream following the said Nine Mile River to the place of beginning saving and reserving the free and uninterrupted Right-of-Way of the said road for the said Vendors, their Heirs and Assigns but granting the said Purchaser the free and uninterrupted use of the said Road. [21] Roy Longard says the "right-of-way of the said road" is "the Borden driveway" in question. [22] do not find this to be so. The "said road" in the description clearly refers to the "road leading from the public highway to the Nine Mile River ... [23] This is the only "road" previously referred to in the description. This is not "the Borden driveway". It is more likely that this reservation refers to an existing road that leads from public Highway No. to the river, then along the river's edge across the Borden Longard property. This road is shown as "the Old Mill Road" on the survey plan which was created August 11, 1980, and entitled "Plan of Survey showing lands of Eldrid [sic] and Borden Longard". This plan is Exhibit No. D24. There is evidence that this road was in use in 1942. [24] It is telling that this reservation does not say that the road in question provides access to Eldred Longard's parcel. [25] That 1980 survey was accomplished when Eldred was alive and it shows subdivision of his property. Subsequently, Eldred sold portion of his property to his son David, Roy's brother, and his wife Dorothy by deed dated December 1, 1980. In that deed there is no reference to any access right-of-way across Borden's land. [26] When Eldred conveyed the portion of his land to Roy in August of 1986, the deed makes no mention of right-of-way across Borden's property. [27] There is no reference to the Borden right-of-way in any subsequent conveyances by Eldred or Borden. It would seem that if it were right-of-way as significant as roadway running proximate to Borden's house and accessing Eldred's land, it would have been referenced in these subsequent deeds. [28] I find that the Plaintiff has not shown that the reservation contained in the 1942 Eldred deed to Borden is or incorporates "the Borden driveway". [29] There is no expressed reservation shown by the Plaintiff herein. Prescription or "Lost Modern Grant" [30] Roy Longard submits that reservation or no reservation, his father Eldred and he have used "the Borden driveway" to an extent and in manner that has created right. [31] The Nova Scotia Court of Appeal visited the law of prescription in Mason v. Partridge, 2005 CarswellNS 479. Oland, JA states at paras. 17-22: 17 Mr. Mason's appeal is based on the doctrine of modern lost grant. Charles MacIntosh, Nova Scotia Real Property Practice Manual, at 7‑21 described that doctrine as follows: The [doctrine of lost modern grant] is judge‑created theory which presumes that if actual enjoyment has been shown for 20 years, an actual grant has been made when the enjoyment began, but the deed granting the easement has since been lost. However, the presumption may be rebutted. 18 In Henderson, supra the Ontario Court of Appeal set out the requirements for establishing an easement pursuant to either limitations statute or the doctrine of modern lost grant in the following passage: 14. It should be emphasized that the nature of the enjoyment necessary to establish an easement under the doctrine of lost modern grant is exactly the same as that required to establish an easement by prescription under the Limitations Act. Thus, the claimant must demonstrate use and enjoyment of the right‑of‑way under claim of right which was continuous, uninterrupted, open and peaceful for period of 20 years. However, in the case of the doctrine of lost modern grant, it does not have to be the 20‑year period immediately preceding the bringing of an action. 19 The trial judge relied upon two decisions for the proposition that the claimant must also establish that the enjoyment of an easement was without permission: Gilfoy v. Westhaver, 1989 CanLII 1494 (NS SC), 92 N.S.R. (2d) 425, [1989] N.S.J. No. 268 (N.S. T.D.) and Publicover v. Publicover (1991), 101 N.S.R. (2d) 75 (N.S. T.D.). The Nova Scotia Real Property Practice Manual, supra referred to these decisions and then stated at 7‑23: The claimant must show such use was made without force, secrecy, or evasion and without consent of the servient owner. [Emphasis in original] 20 The case law does not unambiguously support the conclusion concerning the burden of proof, but in my view, it is not necessary to resolve that issue to decide this case. 21 The enjoyment required to acquire an easement must demonstrate certain characteristics. Gale on Easements, 17th ed. (London: Sweet Maxwell 2002) at p. 208 states: The civil law expressed the essential qualities of the user, by the clear and concise rule that it should be "nec vi, nec clam, nec precario". None of the evidence in the proceeding on appeal indicates that the enjoyment was by violence. Nor was it secret the trial judge was satisfied that there was at least 20 year period of "open use". Thus the question becomes whether the user meets the third requirement that it be "nec precario." 22 In that regard, Gale on Easements at p. 214‑215 states: 3. Nec precario The enjoyment must not be precarious. What is precarious? "That which depends not on right, but on the will of another person." Enjoyment had under licence or permission from the owner of the servient tenement confers no right to the easement. [32] There is, as stated, considerable and convincing evidence that Eldred and Roy Longard in combination used "the Borden driveway" in a continuous, uninterrupted, open, and peaceful manner for many years (well in excess of 20 years) prior to it being blocked off by the Defendants. Roy Longard claims that such use has resulted in right to continue to use this driveway. [33] The Defendants claim that this usage was with the permission of Borden Longard, that he did not ever intend for Eldred Longard or his successors to acquire right to the use of "the Borden driveway". [34] They have produced Statutory Declaration that was executed by Borden Longard on September 1996 (Exhibit 1A, Tab 10). Paras. 3, and of that Statutory Declaration reads as follows: 3. THAT on August 5, 1942, Eldred Longard and his wife conveyed the lower portion of "family lands" bordering on Nine Mile River (LRIS #40026783) to me. This Deed is recorded at the Registry of Deeds at Halifax in Book 845 at Page 813. The property referred to in that Deed is presently owned by Laurie and Linda Mills who acquired the property on October 27, 1995 (Book 5800, Page 1067). 4. THAT some time after acquiring the property referred to above my brother, Eldred, asked if he could use the circular driveway on my property. He also asked if he could use small area (30' 40') of my property for garden (the driveway and garden as it exists today are shown on the plan attached hereto as Schedule "B"). Given that the entrance to my property was safer to use than the driveway on Eldred's property and the fact that had garden there myself, gave him my permission to use the driveway and make garden on my property. While both the driveway and the garden were used by him (and later by his son, Roy) regularly over the following years they both knew that they were using the driveway and the garden with my consent and that the property belonged to me. never said, or implied, that either of them owned the property or could have the property. always exercised all other elements of control and ownership over LRIS 40026783 including the driveway and the area the garden was located on. 5. THAT, furthermore, had wished that Roy Longard have the garden in question would have deeded it to him prior to selling the property to the Maritime Conference of the Seventh-Day Adventist Church in 1995. deliberately chose not to convey the garden property to him when sold this property to the Church. [35] am satisfied that "the circular driveway" referred to in paragraph 4, is "the Borden driveway". [36] Borden's averral in that document is significant to the prescription issue. [37] This is the only evidence as to the communication between Borden and his brother, Eldred. The only evidence as to the nature of the arrangement which led to the use of "the Borden driveway" (and the garden) by Eldred Longard. [38] The Plaintiff, however, claims that Borden was not competent when he executed this document, so as result the circumstances surrounding the execution are highly relevant. [39] This Statutory Declaration was accomplished at the initiative of Linda Mills, predecessor in title to the Defendants. She is retired teacher. She testified. found her to be an impressive and creditable witness. [40] She and her husband, Laurie, purchased the Borden Longard property from the church in October of 1995, intending to build house in the area where their successors, the Keels, eventually built. [41] Linda Mills testified to difficult relationship with Roy Longard. She said he was upset that "outsiders" were purchasing the Borden Longard property. Roy continued to use the garden area that was on the Mills land, and trees that they planted along the border that separated the properties were "torn out". [42] Roy Longard's claim to the use of both the garden and "the Borden driveway" on the Mills property was formalized by letter dated August 20, 1996, sent to Linda and Laurie Mills by his then lawyer, Kelly Patrick Shannon (Exhibit 1B, Tab D11). This letter reads in part: You are no doubt aware by now that Mr. Longard has claimed that he has possessory interest in this land operated by virtue of this Limitations of Actions Act. We have reviewed the various facts and circumstances surrounding this matter and it would appear to us that Mr. Roy Longard has in fact been in actual, open, notorious, exclusive and continuous possession of this garden property as well as road access for period of time well in access [sic] of 20 years. In fact, his father before him had owned Roy Longard's property and had utilized this property continuously dating back to the 1930's. Mr. Longard informed us when you purchased this property you had undertaken survey of the line between the property you subsequently purchased and that of Mr. Longard's which, presumably, would have disclosed the existence of this encroachment. It is our view that Mr. Longard has established his prescriptive right to the garden property and portion of the roadway of this property and his intention is to continue to the use of this property in the same manner in which he has used this property for several years and to which he has acquired an entitlement to do. [43] Linda Mills testified that as result of the receipt of this letter and the actions of Roy Longard she decided to go and speak to Borden Longard at the nursing home medical facility where he then resided. [44] She said that she saw Borden twice before the Statutory Declaration was drawn up. "We shared with him the trouble with Roy. As result of these conversations the Mills engaged counsel to prepare the Statutory Declaration. [45] Linda Mills said that she believed that Borden was of sound mind during these discussions and that he "articulated well". As result of the conversations with Borden Longard, Mills engaged Les Doll, the counsel who had acted for the Mills when they had purchased the property, to prepare the Statutory Declaration. [46] Les Doll testified. He has been member of the Nova Scotia Bar since 1986 and property law specialist. With respect to the preparation and execution of the Statutory Declaration, he said "you have to make sure that the signing party knows what he or she is doing that's crucial especially with older people". [47] Les Doll attended at the nursing home with Linda Mills and Glenna Doubleday (a niece of Borden Longard). He said he asked Borden questions to determine his situation, "Borden was bright and lucid, he knew what he wanted to do. He was amazed at Roy Longard's assertions. Borden made the point 'if had wanted to give it to him would have'." [48] Les Doll said that he read the document to Borden paragraph by paragraph before the signing. [49] Glenna Doubleday is the niece of Borden and the cousin of Roy Longard who was present at the signing of the Statutory Declaration. She visited her Uncle Borden frequently until his death. She estimated she was at the nursing home at least once week. She assisted with his banking once month, "I never thought his mind was failing". "His mind was good to the very end". She made notes in her diary on the day that the Statutory Declaration was signed. She wrote that the document was signed "so Roy can't claim the garden or the driveway". [50] Glenna Doubleday was creditable witness. She showed no bias as between these parties and was in an excellent position to have assessed Borden's cognitive ability at time proximate to the signing of this document. [51] Roy Longard claims that Borden was not capable at the time of the execution of the Statutory Declaration. Roy testified that he had contact with Borden in 1996 and believed he was suffering from dementia, "He knew who was but didn't know what day it was". [52] do not find that Roy Longard had contact with Borden that allowed him the advantage that Glenna Doubleday had when assessing Borden's competence. [53] am satisfied that Borden Longard was competent on the 5th day of September 1996 when he executed the Statutory Declaration. We have the testimony of the three witnesses who were present when he signed, one being his niece who had regular contact with him at times proximate to this signing. [54] am satisfied that counsel, Les Doll, made the effort to satisfy himself as to Borden's competency prior to the execution of that document. am further satisfied that Borden Longard knew what he was declaring. Although there is some legal terminology in the document, its overall content strikes me as being information that Borden Longard would have possessed and conveyed. [55] conclude that it is viable declaration that accurately communicates Borden Longard's position at that time. [56] There is another document that consider significant to the determination of the matter. [57] David Longard, as indicated, is Roy Longard's brother. The Eldred Longard property was subdivided as shown on the Plan of Survey dated 19th day of June 1986 (Exhibit No. 1B5). David Longard owned the land shown as Lot X, Lot 10, on that survey plan. That lot was behind Roy Longard's Lot No. 2, vis-a-vis the public Highway No. 3. [58] In April of 1987, David and Roy Longard entered into right-of-way agreement that is Exhibit 1, Tab B5. In that agreement, David is the party of the first part; Roy is the party of the second part. The agreement reads in part: NOW THIS AGREEMENT WITNESSES THAT, in consideration of the premises, (a) the Party of the First Part grants to the Party of the Second Part right-of-way for the use of the owners and occupants from time to time over the northern part of Lot where the Existing Driveway shown on the Plan runs from Highway No. to Lot 2; (b) the Party of the Second Part grants to the Party of the First Part right-of-way for the use of the owners and occupants from time to time over the Existing Driveway shown on the Plan which runs from Highway No. 3, over the northern part of Lot and then over part of the western half of Lot as shown on the said Plan to the southern part of Lot X; [59] The "existing driveway" described is that access to Highway No. that was shown as "existing driveway" onto Eldred's land in the Plan of Survey of August 11, 1980 (Exhibit No. D24). It is "the other driveway". [60] By this agreement, created 23 years ago, Eldred's sons are negotiating the rights to the access right-of-way that runs across Roy's land. There is no mention in this document of "the Borden driveway". [61] David Longard, user of "the Borden driveway", is securing access to No. Highway over "the other driveway" access to Roy's land. [62] David Longard testified as to why he entered into this agreement. He said he did so because "he didn't have legal right-of-way across Borden's property although he had always used it". [63] believe that David Longard's understanding is insightful he had used this entrance but he knew he didn't have right-of-way over it and so made arrangements with his brother, Roy, to obtain right-of-way over Roy's property. [64] Roy Longard testified, "David and his wife brought the agreement out to me and asked me to sign. shouldn't have signed because knew this was not the existing driveway". [65] I am satisfied on the basis of the Statutory Declaration and on the totality of the evidence that Eldred Longard, his sons Roy and David, and others accessing their properties from Highway No. 3 by use of "the Borden driveway", did so with the permission of Borden. [66] This permission extended by Borden to Eldred and then to Roy precludes the creation of any right to cross "the Borden driveway" created by prescription or lost modern grant. [67] find further that the use of the garden on Borden's property by Eldred and then Roy was with the permission of Borden Longard, as Borden sets out in his Statutory Declaration. [68] Similarly, as result, no right has vested in the Plaintiff, Roy Longard, as to the use of this garden. [69] Having found the Statutory Declaration of Borden Longard to accurately set out the circumstances of the use of "the Borden driveway" and the garden by Eldred and then Roy Longard, I find that Roy Longard has no right to the use of either and that the Defendants are able to legally terminate his use of their property. [70] If necessary, will receive written submissions as to costs. Kennedy, C.J.

After a piece of family property was divided into two parcels, one of the brothers continued to use a driveway and maintain a garden on the other parcel. When this brother died, his son continued to use the driveway and garden, even after the second property changed hands many times. When the current owners of the second property refused to allow the continued use of their property, the son claimed that his use of the driveway was of right on the basis of expressed reservation or prescription. He argued that his uncle was incompetent when he executed a statutory declaration stating that the use of both the driveway and the garden had been with his express permission. Judgment for the defendants; there was no express reservation of the driveway in the deed to the second property and the plaintiff did not have a prescriptive right to use the driveway. Although the plaintiff and his father had used the driveway in a continuous, uninterrupted and peaceful manner for well in excess of 20 years, the statutory declaration showed that this use had been with the uncle's permission.

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J. F.L.D. A.D. 1997 No. 96 J.C.S. IN THE QUEEN'S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: SHAUNA MARLENE SURMINSKY (formerly Shauna Marlene Ulmer, as litigation guardian of Tyson Quinn Ulmer, minor) and BARBARA ULMER and HUGH CRAWFORD (as executors and Trustees of the Estate of MURRAY EDWARD ULMER) RESPONDENT B.D. Barilla for the petitioner D.F. Woloshyn J. Kondos for the respondent JUDGMENT WILKINSON J. July 8, 1997 The deceased, Murray Edward Ulmer has two children of his marriage to the petitioner: Evan Murray Ulmer, born December 22, 1987 Tyson Quinn Ulmer, born December 30, 1989 Tyson was born subsequent to the separation of the parties. The deceased made will and codicil on November 23, 1989 and December 11, 1989 respectively. Neither makes any provision for the younger child. The sole beneficiary of the Estate is the elder son, Evan. The executors are directed to hold the farmlands and improvements in trust for Evan until he attains the age of twenty-one years when they will be conveyed to him absolutely. They are directed to hold the deceased's personal effects, other than motor or non-motorized vehicles and to convey the same to Evan upon his attaining the age of eighteen years. The residue is subject to sale in the Executor's absolute discretion with the like discretion to apply the net income and to encroach on capital for the maintenance of the child, until he reaches twenty-one years of age. The codicil directs the Executors to rent the farmlands, with the deceased's brother, Bruce Ulmer having the first option to lease. There are gifts over to the deceased's mother, Barbara Ulmer, and to the deceased's brother, Bruce Ulmer, in the event that Evan dies before attaining the age of twenty-one years. Pursuant to an Order of February 25, 1991 granting corollary relief in divorce proceedings, the deceased was, in his lifetime, paying child support in the amount of $150.00 per month per child. In 1991 the deceased had total annual income of $14,974.05 primarily from farming operations. Murray Edward Ulmer passed away on November 20, 1996 leaving an estate having declared value of $285,067.68. The known debts of the Estate are $77,653.00 consisting of debt to Barbara Ulmer of $51,080.00 and debt to the petitioner of $26,753.00 for the balance owing on the division of matrimonial property. The petitioner has had difficulty making ends meet. She has total income of $1,089.00 per month from employment as hairdresser and from the child tax credit. Her new spouse nets $1,000.00 per month and he pools his income with hers to cover the family's living expenses. Tyson is diabetic and has extraordinary medication expenses. Evan requires braces at cost of $3,000.00 $3,500.00. The petitioner seeks an order under The Dependents'Relief Act, R.S.S. 1978, c.D-25 that the child Tyson shareequally with his brother, Evan, in the estate of the deceased. She also seeks an order under s. 17(4) of the Divorce Act,R.S.C. 1985, c.3 (2nd Supp.) varying child maintenance from$150.00 per month per child to $1,245.00 per month, total, forthe two children. The Executors do not oppose the application underThe Dependents' Relief Act (supra), however they do put inissue the Estate's ability to support that level ofmaintenance. The Public Trustee, Bruce Ulmer and Barbara Ulmer (in her personal capacity) took no position in the proceedings. The Executors also seek an interpretation of paragraph (b) of the deceased's will which directs the Executors as follows: (b) They shall hold, and keep preserved in my Estate, my personal effects, other than motor or non-motorized vehicles, and shall transfer, convey and deliver the same, absolutely, to my said son, upon his attaining the full age of eighteen (18) years. The concern expressed is whether the phrasing imports wider meaning of the term "personal effects" by virtue of the specific exclusion of motor or non-motorized vehicles. The Executors wish to dispose of grain, livestock, farm machinery and implements for the more efficient administration of the Estate. With respect to the Dependent's Relief application, there are no competing moral or legal claims upon the testator in the circumstances of this case which preclude me from making anything other than an equal division between the two children of the deceased. See Re: Alainga Estate (1995) E.T.R. (2d) 157 where two of the deceased's four children were not adequately provided for; and Tataryn v. Tataryn Estate 1994 CanLII 51 (SCC), [1994] W.W.R. 609 (S.C.C.) where second son received nothing. Having regard to the factors set out in s. 9 of theAct, I find that reasonable provision has not been made forthe maintenance of Tyson Quinn Ulmer and he is entitled toshare equally with Evan Murray Ulmer in the entire Estate ofthe deceased, Murray Edward Ulmer as if each child weredesignated in the will of the deceased as having an equalshare of the estate. With the exception of any payment made to the child, Tyson Quinn Ulmer, by the Executors as provided for in the will, the child, Tyson Quinn Ulmer, shall receive his share of the estate upon attaining the age of twenty-one years. The Executors shall have leave to apply to this court from time to time for further direction or clarification as may be required to give effect to this order. As to the variation of maintenance, counsel for the petitioner relies upon Will v. Thauberger Estate (1991) 38 R.F.L. (3d) 68 (Sask. C.A.). At first instance, the judge varied maintenance payable by the father's estate in respect of two teenage daughters from $250.00 per month per child to $1,500.00 per month per child. The court determined the reasonable monthly expenses for the children, grossed up for tax, to be $3,000.00 per month. Each of the girls would, upon attaining the age of twenty-five, become entitled to receive quarter of million dollars from the estate. The court determined that the primary source of the children's support should be their own funds, which were earning more in interest than the amount required to satisfy their reasonable needs. On appeal, it was held that the Estate was not required to carry substantially all the burden of maintaining the children. The mother's income, including survivor's benefits and family allowance payments should be taken into account, as she had an obligation to make some contribution to the maintenance of the children. In the end result the appeal court reduces the maintenance from $3,000.00 to $2,500.00 per month, reduction of some 17%. In the case before me, the petitioner has calculated the reasonable childcare expenses to be $1,493.00 to $1,500.00 per month; which she has discounted by 17% (as in Thauberger (supra)) to arrive at the sum claimed of $1,245.00 per month. The Estate questions the reasonableness of the expenses claimed on behalf of the children. The primary concern is whether the Estate can financially bear the level of support claimed. There are significant differences between the circumstances of this case and those in Thauberger (supra). Here the estate is substantially smaller, the children have longer period of dependency and, whereas in Thauberger (supra) the interest income of the Estate exceeded the level of support claimed, here it is, as yet, unknown what income the Estate will generate. It is, however, anticipated that the farmlands will be rented out and that the farm equipment, livestock and grain on hand will be sold and converted to cash. Some consideration should be given to respecting the testator's wishes that the farmlands be preserved until the child (now children) reach the age of twenty-one years. Presumably one could test the reasonableness of the maintenance claim by resorting to current or previous methods of determining appropriate awards of child maintenance: the Wright v. Wright, 1996 CanLII 4915 (SK CA), [1996] W.W.R. 1, 141 Sask. R. 44, 114 W.A.C. 44, 1996 CanLII 4915 (SK CA), 21 R.F.L. (4th) 201 (Sask.C.A.) formula, or Douthitt and Fedyk's The Cost of Raising Children in Canada (Toronto: Butterworths, 1990) or the Child Support Guidelines. But, these formulas are all income reliant in some form or another. It is possibly of some limited assistance to know that, relying on Douthitt and Fedyk's calculations the maintenance claimed here would be the amount that an upper middle income prairie family, earning approximately $65,000.00 per year, would spend on child rearing costs for two child family, where the youngest child is seven years of age. Or, that under the Guidelines, payor would have to earn gross annual income of $105,200.00 to be ordered to pay child support of $1,245.00 per month for two children. Having regard to the deceased's level of income, and the standard of living experienced by the children during his lifetime the amount claimed far exceeds what the children would receive if their father was still living. But different considerations arise in the context of Dependent's Relief application taken in conjunction with variation application. In Ostrander v. Kimble Estate, [1996] 1915 CanLII 170 (SK CA), W.W.R. 336 it was held that the phrase "reasonable provision" in s. 9(1) of The Dependents' Relief Act (supra) can no longer be defined as "that which would permit the dependent to maintain the standard of living enjoyed during the lifetime of the testator", but is to be determined having regard to the testator's legal and moral obligations to the dependent and others. more generous award may result. That is also implicit in the result of the Thauberger (supra) case, on variation application. Although the reduction of 17% should not be taken as formula of general application it is apparent that more generous award was given than could have been achieved on strict application of the Wright (supra) formula which allocates expenses in proportion to income, given that the mother's income in that case was roughly equivalent to the income from the estate. The children's needs are such that they require the monies sooner rather than later. The deceased himself provided in the will that the Executors had absolute and uncontrolled discretion to encroach on capital for the purposes of child maintenance, education, benefit and advancement. The preservation of an inheritance until the children attain the age of twenty-one is not, in all the circumstances, predominant factor. The amount to be awarded for maintenance is not, of necessity, tied to the standard of living the children experienced during the testator's lifetime, or to the net income the Estate will generate subsequently. But consideration must be given to what the Estate can reasonably bear having regard to the known debts, the unknown future expenses, and administration costs. There are known debts of $77,653.00. There will be costs, as yet undetermined, for taxes, accounting fees, legal fees and other administration costs. Excluding the three quarter sections of farmland, there are estate assets valued at approximately $220,000.00. Of these, only some $17,000.00 in assets are currently in liquid form. The residual value will depend upon whether the Executors can sell, and are successful in selling, the grain, farm equipment and livestock for their estimated worth. Deducting the known debts of $77,653.00 leaves value of $142,347.00 remaining (excluding the land). Some portion of that amount will be required for the unknown expenses and administration costs. For the reasons will set out subsequently, the Estate will be in position to liquidate the farm machinery, grain and livestock. Using Form 23B, Schedule of The Queen's Bench Forms as rough guide the Estate would require the present sum of approximately $109,000.00 to generate payments of $450.00 per month for each child until they turn twenty-one years of age. At this level of maintenance, the farmlands could be maintained and rented out, realizing some additional income, and preserving this aspect of the children's inheritance until they reach the appropriate age. There would be reserves remaining for unknown contingencies and undetermined costs and expenses. These calculations are only crude estimation, but have attempted to consider the children's current needs weighed against what the Estate can reasonably bear in all the unknown circumstances, while still giving effect to the Testator's intentions to preserve the farmlands in specie for conveyance to the children at twenty-one years of age. It is therefore ordered that the maintenance will bevaried effective August 1, 1997 and continuing on the firstday of each and every month thereafter in the amount of$900.00 per month for the two children. The formal order willspecify that the Court has departed from the Guidelines forthe reason that the award is made in connection with aDependent's Relief application, the income of the Estate iscurrently unknown, but in all the circumstances the court issatisfied that reasonable provision has been made for thesupport of the children. With respect to the application by the Executors for interpretation of paragraph (b) of the will rely on Re: Brownell (1958) 41 M.P.R. 171 which outlines the fundamental principles for construing will. They are as follows: (1) Interpret the words according to the Testator's intention having regard to the will as whole, which forms the context of the clause. (2) Read the will without regard to legal rules. (3) Give effect to all parts of the will so that every word will 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. (4) When the testator's intention is determined ask "is there any rule which prevents giving effect to it?" also rely on Joseph v. Phillips (1934) D.L.R. 577 at page 579, decision of the House of Lords, holding that personal effects are physical chattels having some personal connection with the Testator such as articles of personal or domestic use or ornaments, clothing, furniture or so forth. There is nothing within the will, read as a wholewith reference to the ordinary rules of construction whichrequires the term "personal effects" to be given anythingother than its ordinary meaning; with the clarification thatthe Testator did not wish to preserve personal use vehicles. I therefore hold that the term "personal effects" does notinclude grain, livestock, farm machinery, equipment orimplements, or other assets related to the business oroperations of the farm. Counsel for both parties are entitled to their costs of the proceedings to be paid on solicitor-client basis out of the Estate.

The petitioner sought an order under the Dependent's Relief Act that the younger child share equally with his brother in the estate of their deceased father. Neither the deceased's Will nor the codicil made in November and December 1989 respectively made provision for the second son born December 1989, subsequent to the separation of the parties. The elder son was the sole beneficiary and the farmlands were to be held in trust for him until he turned twenty-one. The younger son was diabetic and had extraordinary medical expenses. The eldest required braces. The mother's income was $1,089 per month. The deceased had been paying support in the amount of $150 per month per child pursuant to the 1991 divorce order. The mother sought an order under s17(4) of the Divorce Act varying child maintenance from $300 to $1,245 per month for the two children. The Executors did not oppose the application but put in issue the Estate's ability to support that level of maintenance. HELD: The younger child was entitled to share equally with his brother in the estate as a reasonable provision had not been made for his maintenance. Maintenance was varied to $900 per month for the two children. 1)Different considerations arise in the context of a Dependants' Relief Act application taken in conjunction with a variation application. The phrase 'reasonable provision' in s9(1) of the Dependants' Relief Act is to be no longer defined as that which would permit the dependent to maintain the standard of living enjoyed during the lifetime of the testator but is to be determined having regard to the testator's legal and moral obligations to the dependent and others (Ostrander). A more generous award may result. 2)The preservation of an inheritance until the children attain the age of twenty-one is not a predominant factor. The amount of maintenance is not, of necessity, tied to the standard of living experienced when the testator was alive or to the net income the Estate will generate subsequently. The court departed from the Guidelines for the reason the award was made in conjunction with a Dependent's Relief application, the income of the estate was currently unknown, but the court was satisfied that reasonable provision has been made for the children. 3)There was nothing in the Will, read as a whole with reference to the ordinary rules of construction which required the term personal effects to be given anything other than their ordinary meaning; with the clarification that the testator did not wish to preserve personal use vehicles. Thus, personal effects did not include grain, livestock, farm machinery, equipment or other assets related to the operations of the farm. 4)Counsel for both parties were entitled to their costs of the proceedings to be paid on a solicitor-client basis out of the estate.

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Claim No: 313460 IN THE SMALL CLAIMS COURT OF NOVA SCOTIA ON APPEAL FROM AN ORDER OF THE DIRECTOR OF RESIDENTIAL TENANCIES Cite as: Formac Investments Ltd. v. Peck, 2009 NSSM 48 BETWEEN: FORMAC INVESTMENTS LIMITED Tenant PROVISIONAL APPEAL DECISION AND ADDENDUM BEFORE Eric K. Slone, Adjudicator Hearing held at Dartmouth, Nova Scotia on September 29, 2009 Provisional decision rendered on September 30, 2009; Addendum added October 20, 2009 APPEARANCES For the Landlord Jim Lorimer, President For the Tenant self-represented BY THE COURT: [1] This case raises an interesting and perhaps important issue under residential tenancy law, and in particular what it means when Landlord has been directed not to withhold consent in an arbitrary or unreasonable manner. [2] This is an appeal by the Landlord from an order of the Director dated August 31, 2009. That order effectively permitted the Tenant to convert what had been a year to year lease into a month to month one. It also denied the Landlord’s request that the tenancy be deemed to have terminated because the Tenant effectively refused to renew for another year. [3] The Landlord (specifically its president, Mr. Lorimer) and the Tenant are relatively sophisticated parties, and this tenancy concerns high-end flat in south-end Halifax which is occupied by the Tenant and two other individuals. [4] The original lease ran from September 1, 2007 to August 31, 2008, and was renewed for one year. About four months before the expiry of the second year, the Tenant gave a proper notice that he wished to convert the tenancy into a month to month tenancy, pursuant to the provisions of s.10A of the Residential Tenancies Act, which provides: Renewal term and daily rents 10A (1) lease, except for fixed‑term lease, continues for the same type of term if no notice is given pursuant to subsection (1) of Section 10 and is deemed to have been automatically renewed. (2) fixed‑term lease ends on the day specified in the lease and, if tenant remains in possession with the consent of an owner, the lease is deemed to have renewed itself on month‑to‑month basis. (3) Where tenant gives notice to quit three months prior to the anniversary date of year‑to‑year lease and requests in writing that the term be changed to month‑to‑month lease, the consent of the landlord shall not be arbitrarily or unreasonably withheld. (4) Where tenant makes written request pursuant to subsection (3), the landlord shall respond within thirty days of receipt thereof, otherwise consent is deemed to be granted. [5] The Landlord responded within thirty days and refused to consent, giving his reasons why he believed that it was not in his interest to have a month to month tenancy. Those reasons will be considered below. [6] An application by the Landlord was commenced on July 10, 2009, and came before the Residential Tenancies Officer for hearing on August 24, 2009. written decision was rendered week later. [7] The Residential Tenancies Officer stated in his reasons that based upon his reading of the Residential Tenancies Act, the Landlord “may not deny the tenant’s request that the lease be changed from a year to year lease to a month to month effective September 1, 2009.” He accordingly declared that the lease had become month to month. As corollary to that finding, he declared that the tenancy had not been terminated, as the Landlord contended. [8] The Residential Tenancies Officer appears to have given no consideration to the Landlord’s reasons for withholding consent, and in particular made no finding that the reasons were either arbitrary or unreasonable. In so failing to consider the Landlord’s reasons, I believe that the Residential Tenancy Officer erred in law. [9] The words “the consent of the landlord shall not be arbitrarily or unreasonably withheld” must be given some meaning. The Act could have, but did not, make it automatic that tenant’s request to change from year to year to month to month would be given effect. It places the Landlord in the centre of a consenting process and allows the Landlord to exercise some judgment, with the constraint that it not be arbitrary or unreasonable. [10] The concept of consent not being unreasonably or arbitrarily withheld occurs in two contexts in the Act. The other is subletting. have not been able to locate case where the issue was consent to conversion from yearly to month to month. Not surprisingly, there are numerous cases from across Canada in both commercial and residential contexts, where courts have had to adjudicate dispute over whether the withholding of consent to sublet was unreasonably withheld. [11] In case before the Saskatchewan Court of Queen’s Bench, Windsor Apothecary Ltd. v. Wolfe Group Holdings Ltd. 1996 CarswellSask 116, the judge summarized what has become the accepted law in this area: At one time, to be considered reasonable, the withholding of consent by landlord had to be connected to the personality of the intended sublessee or with his probable user of the property: Houlder Bros. Co. v. Gibbs, [1925] Ch. 575 (C.A.) This view of the law has fallen into disfavour, and the modern approach is for court to put itself into the position of the landlord and, having regard to the surrounding circumstances, the commercial realities of the marketplace and the economic impact of the sublease on the landlord, determine whether reasonable landlord would consent to the sublease: Sundance Investment Corporation Ltd., supra; F.B.D.B. v. Starr (1986), 1986 CanLII 2534 (ON SC), 41 R.P.R. 151 (Ont. S.C.); Lehndorff Can. Pension Properties Ltd. v. Davis Mgmt. Ltd. 1989 CanLII 2762 (BC CA), [1989] W.W.R. 481 (B.C.C.A.). [12] believe the same considerations as apply to subletting would apply to the changing of the term of the lease. Based on this, the task for me is to ask whether or not, “having regard to the surrounding circumstances, the commercial realities of the marketplace and the economic impact of the [conversion] on the landlord, “reasonable Landlord” would withhold consent to the conversion of year to year to month to month tenancy. [13] The reasons of the Landlord here are that, in his experience, this particular flat is much more difficult to lease out at any time of the year other than September 1, which has become almost a standard moving day in south end Halifax, in part because that is the start day for most student apartments. The flat in question is large 3-bedroom that appeals mostly to individuals sharing rather than to families, although it is not necessarily attractive to students. The Landlord produced evidence to corroborate that the last time the apartment was on the market over the winter, it stood vacant for many months. [14] can envision other scenarios where it would be inconvenient and potentially costly for Landlord to have to administer month to month tenancy. For example, Landlord may reside overseas and not want to have to deal with vacancy except at predictable time when he or she can plan to be on hand. There are no doubt other factors that might reasonably incline Landlord to want to insist that tenancy remain year to year. [15] do not believe that the intent of the Residential Tenancies Act is to make such conversions automatic, or virtually so. What it does is make them possible and, in most cases, difficult to resist. [16] An arbitrary decision would be one that is random or based on purely personal whim. An unreasonable one would have no credible rationale behind it. am unwilling to say that this Landlord was being arbitrary or unreasonable in refusing consent. It is, after all, his building and the financial consequences of long vacancy will be borne by him. He is entitled to make reasonable business decision and not be second guessed by tenants, Residential Tenancy Officers or Adjudicators simply because they do not agree with the Landlord. [17] In the result, I allow the appeal and declare that the tenancy has not been converted into a month to month tenancy, because the Landlord refused his consent in a timely manner, for reasons that were neither arbitrary or unreasonable. [18] Unfortunately, for reasons beyond the control of either the Landlord or the Tenant, they have been operating in state of uncertainty, not knowing the status of the lease. The practical effect of either possible result could work hardship on either or both of them, disproportionate to their actions. [19] Were to declare that the tenancy had been renewed for another year, it would place hardship on the Tenant and put him into lease that he does not want, and believed he had avoided. If declare that the tenancy has been terminated and the tenant is, in effect, over-holding, then the Landlord may have to contend with vacancy precisely when he believes the market will have become soft. [20] As indicated at the hearing, my inclination is to defer making finding as to the state of the tenancy for short period of time, to allow the parties to negotiate suitable compromise. As such, will give them one week from the date that this decision is communicated to them. If after that week they have not reached an understanding, which they would be directed to convey to the court, then will complete my findings and determine the existing state of the tenancy. Eric K. Slone, Adjudicator [21] The parties were unfortunately unable to come to an agreement on the issue of when this lease would terminate. must therefore decide the issue, with aid of their written submissions. [22] The Landlord wants the lease to terminate on August 31, 2010, but to alleviate hardship he has unconditionally undertaken to accept an early termination on any date from May 31, 2010 (his undertaking refers to 2009, but I believe that is a typo) until August 31, 2010. [23] The Tenant asks that an earlier date be set, given that he has acted in good faith and had no way of knowing that his effort to convert the tenancy into month to month would be thwarted. [24] The Landlord is concerned that, if set an earlier date, the effect of my decision would, in effect, be neutralized and he would be exposed to the very financial risk that he seeks to avoid. [25] recognize that there is potential hardship, no matter which result pertains. Both parties have acted in good faith. [26] However, my function here is to make the order that the Residential Tenancies Officer ought to have made when the matter came before him. By then, it was already too late to avoid hardship. Had he ruled in favour of the Landlord at that time, the Tenant would have been faced with the same situation, or perhaps he would have had the option to vacate immediately. The fact that it took two steps to arrive at final result is no one’s fault. [27] have decided that for my decision to have any real meaning, the legal result must flow from the decision. That is, the lease has been renewed for one year and expires on August 31, 2010. The Tenant has the advantage of the Landlord’s undertaking to accept an early termination. Also, the Tenant has the ability to sublet, if and when he determines that he wants to leave early. [28] In effect, the risk of vacancy falls on the tenant. In the unique circumstances of this case, it is appropriate that the Tenant and not the Landlord incur that risk. [29] Of course, it is speculative as to whether there will be any period of vacancy or any financial consequences, but the parties at least understand now what is required of them. Eric K. Slone, Adjudicator

The tenant's year-to-year lease ran from September 1 to August 31. Four months before it was set to automatically renew, he notified the landlord he wished to convert to a month-to-month tenancy. The landlord refused, saying vacancies were hard to fill at any time other than September 1st. The three bedroom rental was in an area with a large university student population and was targeted at individuals sharing not families. It was a high-end rental, and would not necessarily appeal to students. The landlord provided evidence that the last time it was on the market in winter, it was vacant for several months. After a Residential Tenancies Board hearing, an officer declared the tenant successful. The written decision did not mention the landlord's reasons for refusing consent, nor did it say they were arbitrary or unreasonable. The landlord appealed, but offered to compromise by allowing the tenant to terminate the lease any time between May 31 and August 31 without penalty. The officer erred in law. The Act allows the landlord some discretion to refuse a request to convert to month-to-month, providing the refusal is made reasonably. The landlord's reasons were neither unreasonable nor arbitrary, given the reality of the market and his past experiences with a winter vacancy. There may be other situations where consent could reasonably be withheld. The tenancy is declared to have been renewed for another year (with the understanding the landlord will allow the tenant to terminate at any point after May 31). Both parties acted in good faith and, while it might seem unfair to lock the tenant into a lease he believed had converted to month-to-month, the court must make the order the officer should have made in the first place.

d_2009nssm48.txt

693/97 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT REGINA, SASKATCHEWAN SMALL CLAIMS DIVISION BETWEEN: ELMER SCHMIDT Plaintiff and VERNON HENRY AND Defendant MARGARET HENRY 1. When Elmer Schmidt, who was travelling west on Highway 306 near Grey, Saskatchewan, saw car driven by Margaret Henry approach from his right, stop at the stop sign, and then proceed forward toward the highway, he applied his brakes with such force that his truck entered skid, left the highway, and struck the side of the car. The damages to both the truck and the car exceeded the $500.00 insurance deductible. Consequently, Schmidt brings this action against the car\'s owner, Vernon Henry, and Margaret Henry for his $500.00 deductible, and the Henrys counterclaim for the same. 2. The situation at this intersection is somewhat unusual, in that the stop sign is 39 feet back from the edge of the pavement, which itself approximately two feet from the driving portion of the highway. Henry complied with the requirement to stop. However, The Highway Traffic Act places an additional duty upon such drivers. Section 40 of the Act reads, in part: (4) The driver of vehicle shall bring the vehicle to stop: (a) at every place where stop sign is erected; (6) No person who is required to stop pursuant to subsection (4) or (5) shall proceed until it is safe to do so. 3. Those subsections have been interpreted to mean, sensibly, that the driver must not only stop, but yield to oncoming traffic. However, it does not prohibit driver from proceeding from the stop sign toward the actual intersection. In case where that intersection is 39 feet away, it is quite possible to proceed toward it even while yielding to oncoming traffic. 4. There is further evidence. Although Schmidt disagrees, Henry states that she had come to second stop before the collision occurred. That evidence is supported by two independent facts. The first is that after the collision, her car remained off the paved portion of the highway. The second is the evidence, as given by the investigating officer, that the car's front wheel skid marks were also entirely off the pavement, and several feet back from the driving portion. 5. In short, it must be concluded that either Henry had stopped, or was able to stop, before entering Schmidt's right of way. 6. Even if Schmidt concluded that Henry was going to proceed into his path, he had more appropriate alternatives than locking his brakes and turning to the right. There was no other traffic. He could have applied his brakes, maintained control of his vehicle, and moved into the oncoming lane. 7. Most of the fault in this accident is attributable to Schmidt\'s inappropriate reaction to the situation. However, although Henry complied with the rules of the road, a prudent driver in this situation would come to a stop further back from the highway to ensure that oncoming drivers would know that they had been seen and yielded to. I attribute 10% of the fault in this accident to Henry and 90% to Schmidt. 8. In conclusion, Schmidt will have Judgment against the Henrys in the amount of $50.00. On the other hand, the counterclaim succeeds against Schmidt in the amount of $450.00. They will also have Judgment for the cost of two subpoenas. August 10, 2006 R. Moxley Judge of the Provincial Court

The parties were involved in an accident. The defendant stopped at a stop sign 39 feet from the intersection and rolled forward while yielding. The plaintiff locked his brakes and skidded into the defendant, attempting to avoid an accident. Damage to both vehicles exceeded the insurance deductibles and both parties claim damages against each other for the amount of the deductibles. HELD: The plaintiff will have judgment against the defendant in the amount of $50. The defendant will have judgment against the plaintiff in the amount of $450 plus costs. Fault for this accident was attributed 10% to the defendant and 90% to the plaintiff. The defendant had indeed yielded properly but could have been more prudent in insuring that other motorist were aware that she yielded. The plaintiff should have taken more appropriate measures to avoid the accident

2_1999canlii12398.txt

S.C.C. 02288 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S., Hallett and Matthews, JJ.A. BETWEEN: ROGER KENNETH PORTER and HER MAJESTY THE QUEEN Respondent Deborah M. Gass for the appellant William D. Delaney for the respondent Appeal heard: October 16, 1990 Judgment delivered: October 16, 1990 THE COURT: Appeal against sentence allowed and sentence varied to twelve months imprisonment for offence of aggravated assault causing bodily harm (Criminal Code, s. 268(1)) per oral reasons for judgment of Clarke, C.J.N.S.; Hallett and Matthews, JJ.A. concurring. The reasons for judgment of the Court were delivered by: CLARKE, C.J.N.S.: The appellant applies for leave to appeal from sentence of two years less one day and an order of two years probation imposed on May 8, 1990, by the Honourable Judge MacDonnell. The appellant entered guilty plea to charge of aggravated assault contrary to Section 268(1) of the Criminal Code. The offence was committed at Joggins where, late in the evening and while intoxicated, the appellant fired shots from his 12‑gauge shotgun, first at the mobile home wherein the parents of his estranged wife lived and, second, at his brother‑in‑law, who was injured in the leg. The latter was admitted to hospital for treatment. The appellant contends the trial judge erred by placing undue emphasis on general deterrence and failing to adequately consider the circumstances of the offence and the offender. Aggravated assault is serious offence for which the Code provides maximum penalty of fourteen years. The acts of the appellant placed the lives of several persons at risk, particularly that of his brother‑in‑law. After reviewing the record and the remarks of the trial judge at sentencing and after considering the submissions of counsel, we' are of the opinion that the trial judge imposed a sentence which fails to adequately reflect the special circumstances of the offender. Accordingly, we grant leave to appeal and allow the appeal by varying the sentence to twelve months incarceration. The other orders issued by the trial judge will continue. C.J.N.S. Concurred in: Hallett, J.A. Matthews, J.A. CANADA PROVINCE OF NOVA SCOTIA CAM 6710 IN THE SUPREME COURT OP NOVA SCOTIA APPEAL DIVISION on appeal from THE COUNTY COURT JUDGE'S CRIMINAL COURT OF DISTRICT NUMBER FIVE HER MAJESTY THE QUEEN v. ROGER KENNETH PORTER HEARD BEFORE: The Honourable Judge B. J. MacDonnell, J.C.C. PLACE HEARD: Amherst, Nova Scotia DATE HEARD: May 8, 1990 COUNSEL: C. Ellis, Esq., for the Prosecution D.M. Gass, for the Defendant APPEAL ON SENTENCE S.C.C. 02288 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: ROGER KENNETH PORTER and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF CLARKE, C.J.N.S.

Appellant, who was intoxicated, fired shots at the mobile home where the parents of his estranged wife lived and at his brother-in-law, who was injured. 2 years less a day plus 2 years probation varied to 1 year incarceration with two year probation and firearm prohibition - trial judge placed undue emphasis on general deterrence and failed to adequately consider the special circumstances of the offender.

d_1990canlii2519.txt

nan IN THE PROVINCIAL COURT OF NOVA SCOTIA Citation: Todd Stephen Abbass v. Her Majesty the Queen 2004NSPC nan Date: 20040108) Docket:1231795/96 Registry:Halifax Between: Todd Stephen Abbass v. Her Majesty the Queen Judge: The Honourable Judge Pamela S. Williams Heard: December 18, 2003, Halifax Oral Decision: January 8, 2004 Written Decision: January 8, 2004 Counsel: Duncan Beveridge, for the Applicant Christopher Morris, for the Crown By the Court: [1] This is an application for a stay of proceedings based on a violation of the right to be tried within a reasonable time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms. [2] On August 28, 2002, the applicant was charged with exceeding the Breathalyzer and impaired driving contrary to sections 253(b) and 253(a) of the Criminal Code. On November 12, 2002, he was arraigned on the information, (sworn to on September 29, 2002). The applicant, represented by counsel, entered not guilty plea and requested “the first available date for trial,” and was given the date December 18, 2003. It was anticipated that one full day would be required as the Defense intended to make Charter motion and lead “evidence to the contrary.” LEGAL PRINCIPLES Relevant Time Period [3] The relevant time period to consider on s. 11(b) application is from the date of the charge to the end of the trial, R.v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) at page 14. For the purposes of this application it is the date the information was sworn, September 29, 2002 to the date set for commencement of trial, December 18, 2003. The time span is little more than 14 months. Purpose of s. 11(b) [4] On s.11(b) application it is important to be forever mindful of the rights s.11(b) of the Charter seek to protect and uphold and the purpose of those rights. Section 11(b) has two purposes. The primary purpose is the protection of the individual’s right of liberty and security of the person and the right to fundamental justice. The secondary purpose is community or societal interest which has dual dimension. Mr. Justice Cory, writing for the majority in R.v. Askov (1990), 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449 SCC clearly stated these objectives at p. 474: agree with the position taken by Lamer J. that s. 11(b) explicitly focuses upon the individual interest of liberty and security of the person. Like other specific guarantees provided by s. 11, this paragraph is primarily concerned with an aspect of fundamental justice guaranteed by s.7of the Charter. There could be no greater frustration imaginable for innocent persons charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as result of unreasonable delays in their trial. The time awaiting trial must be exquisite agony for accused persons and their immediate family. It is fundamental precept of our criminal law that every individual is presumed innocent until proven guilty. It follows that on the same fundamental level of importance, all accused persons, each of whom is presumed innocent, should be given the opportunity to defend themselves against the charges they face and to have their name cleared and reputation re-established at the earliest possible time. Although the primary aim of s.11(b) is the protection of the individual’s rights and the provision of fundamental justice for the accused, nonetheless, there is, in my view, at least by inference, community or societal interest implicit in s. 11(b). That community interest has dual dimension. First, there is collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Secondly, those individuals on trial must be treated fairly and justly. Speedy trials strengthen both those aspects of the community interest.... [5] There are important practical benefits which flow from speedy trial. Memories fade with time and witnesses are likely to be more reliable testifying to events in the recent past than in the more distant past. All crime disturbs the community and all members of the community are entitled to see that the justice system works fairly, efficiently and within reasonable time frame. At p. 475 Mr. Justice Cory identifies very real concern: The failure of the justice system to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to feeling of contempt for court procedures. When trial takes place without unreasonable delay, with all witnesses available and memories fresh, it is far more certain that the guilty parties who committed the crimes will be convicted and punished and those that did not, will be acquitted and vindicated. It is no exaggeration to say that fair and balanced criminal justice system simply cannot exist without the support of the community. Continued community support for our system will not endure in the face of lengthy and unreasonable delay. Factors to be taken into account in determining whether or not there has been an infringement of s. 11(b) [6] The test for unreasonable delay established by the Supreme Court of Canada and confirmed in R.v. Askov and R.v. Morin(supra) involves consideration of the following factors: (1) Length of delay is the delay sufficient to raise question as to its reasonableness? If not, the application should be dismissed without further inquiry. (2) Waiver Even if the delay is long enough to embark on an inquiry, has the applicant waived the delay or part of it such that the remainder is not unreasonable? (3) Reasons for Delay If waiver does not resolve the issue, are there other explanations for the delay? (a) Inherent Time Requirements Some delay is unavoidable in all cases. The more complex case the longer the unavoidable delay. (b) Actions of Accused Legal processes used by the applicant, including adjournments and pre-trial motions that contribute to the delay will be considered. (c) Actions of the Crown Actions of the Crown which delay the trial, such as adjournment requests, and failure or delay in providing disclosure will be taken into account. (d) Limits on Institutional Resources The government has constitutional obligation to commit sufficient resources to prevent unreasonable delay. If the lack of resources contributes to the delay, beyond the inherent time requirements of the case, the delay is attributable to the state, and the Crown. (4) Prejudice to the Accused Prejudice to an accused may be inferred. The longer the delay, the easier it may be for the court to infer prejudice. Either party may rely on evidence to either show prejudice or dispel it. An accused may allege prejudice to his or her liberty interest, security interest, or right to fair trial, (to be given an early trial before his interests may be affected by the loss or deterioration of defense evidence). Where the Crown demonstrates that there was no prejudice to the accused flowing from the delay, then such proof may serve to excuse the delay. [7] What the court must do is to determine judicially whether the delay is unreasonable. This is done by balancing the interests the system is designed to protect against the factors that inevitably lead to delay or otherwise cause delay. [8] The length of the delay The information before this court was sworn September 29th, 2002 and Mr. Abbass’s trial was scheduled for December 18th, 2003. The total time period between charge and trial is little better than 14 months. The accused at no time waived his right to trial within reasonable time. The length of delay therefore totaled just over 14 months, roughly the same time period the Supreme Court of Canada considered in R. v. Morin (supra). As in Morin, find that the length of the delay sufficient to raise the issue of reasonableness and the inquiry must turn to the reason why it took14½ months to bring Mr. Abbass to trial. [9] Waiver of time periods Waiver must be clear and unequivocal and with full knowledge of the right one is waiving. It cannot be said here that Mr. Abbass waived any of his rights, explicitly or implicitly. Mr. Abbass retained and instructed counsel, entered his plea at arraignment and set the matter for trial. [10] The reasons for the delay (a) Inherent time requirements Mr. Abbass was charged with failing the Breathalyzer and impaired driving. This is one-witness case for the Crown. All relevant testing and investigation were completed on the day of arrest. The Defense advised on arraignment of the need for one full day for trial as it intended to raise Charter motion (s. and s. 9) and present evidence to the contrary. Some preparation time was required, particularly as result of issues raised by the defense, thereby necessitating some delay, but it can be inferred that the inherent time requirements for this case were no more than couple of months. (b) Actions of the accused At his first court appearance Mr. Abbass requested the first available date for trial and was given a date over 13 months in the future. From the transcript of the court proceedings, it is clear that counsel for Mr. Abbass was advised by the clerk that the first available date for trial was December 18th, 2003. Other than this court appearance, there is no action on record taken by the accused from the point of his charge to the date of trial. (c) Actions of the Crown There is nothing to suggest that the Crown in any way contributed to the delay in this matter. (d) Limits on Institutional Resources The single most important factor, and indeed the only factor in this case, is the limit on institutional resources. The parties could have been ready for trial much sooner but courtroom #3 at Halifax Provincial Court could not accommodate them. An institutional delay of little over 13 months existed. In R.v. Morin (supra) Sopinka J. stated at p. 21-22: .. It is appropriate for this court to suggest period of institutional delay between eight to ten months as guide to Provincial Courts.. These suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances. The Court of Appeal in each province will play supervisory role in seeking to achieve uniformity subject to the necessity of taking into account the special conditions and problems of different regions in the province. delay of 14 months is well outside the 8-10 month guideline established in Morin. However, the application of the guideline will also be influenced by the presence or absence of prejudice. [11] Prejudice to the Accused There is duty on the Crown to bring the accused to trial. The purpose of s.11(b) is “to expedite trials and minimize prejudice and not to avoid trials on the merits”. Action or non-action by the accused which is inconsistent with desire for timely trial is something that the court must consider, R.v. Morin (supra at p. 24). In this case the accused asserted his right to speedy trial by requesting the first available trial date. He retained counsel and was prepared to fight the merits of the case at trial. It cannot be said that he deliberately or otherwise was attempting to escape trial on the merits. [12] This court is asked to infer prejudice from the length of the delay having regard to the nature of the charges. Mr. Abbass is charged with offences which, by their very nature, often involve technical legal arguments based on the evidence which is very fact-specific. Adherence to specific time frames and procedures is essential. Specific recollection of times and events is necessary when leading evidence to the contrary. The longer the delay the greater the risk that the evidence given by witnesses may not be as reliable as it might otherwise be, due to fading memories. [13] There is no evidence before me to suggest that institutional delay of 13 months is the norm in other metro provincial courts. Given the nature of the charges and the technical nature of Breathalyzer law, the fact that the Defense has verbalized an intention to raise s. 8 and s.9 Charter motions and lead evidence to the contrary, I find that prejudice can be, and is, inferred on the basis that the length of the delay is likely to interfere with the quality of evidence tendered, given the passage of time that has occurred since the circumstances giving rise to the charges. [14] The issue before me is where the line is to be drawn between the rights of the individual to trial within reasonable time, and the societal right to bring those accused of crime to trial. am mindful that stay of proceedings is very potent remedy and should only be granted “in the clearest of cases,” R.v. Conway (1989), 1989 CanLII 66 (SCC), 49 C.C.C. (3d) 289 SCC. [15] On the whole of the evidence, am satisfied that the applicant has established, on balance of probabilities, that his right to be tried within reasonable time has been infringed. Institutional delay of 13 months in the context of this particular offender charged with these particular offences gives rise to an inferred prejudice, and renders his trial unfair in that he is not able to be tried within reasonable time. The prejudice is such that it can not be remedied in any other way than by entering stay of proceedings. Accordingly, the proceedings are stayed. Pamela S. Williams Judge of the Provincial Court

The defendant applied for a stay of proceedings on the basis of a violation of his right to be tried in a reasonable time. There had been delay of approximately 14.5 months from the time that he was charged with exceeding the breathalyzer and impaired driving to the date of his trial. Stay of proceedings granted. At his first court appearance the defendant requested the first available trial date and there was no evidence to suggest that an institutional delay of 13 months was the norm in other metro provincial courts. Given the nature of the charges, the technical nature of breathalyzer law and the defendant's stated intention to raise ss. 8 and 9 of the Charter, prejudice could be inferred on the basis that the length of delay was likely to interfere with the quality of evidence tendered.

e_2004nspc8.txt

A.D. 1996 No. 123 J.C.S. IN THE QUEEN`S BENCH (FAMILY LAW DIVISION) JUDICIAL CENTRE OF SASKATOON BETWEEN: JANE MARY BAYDA and IRVIN BAYDA RESPONDENT V.G. Watson for the petitioner D.Z. Braun for the respondent JUDGMENT DICKSON J. December 9, 1998 [1] The petitioner (mother) seeks retroactive child andspousal support. Her application is rather unusual because no children are presently dependent upon her and by her own admission she is self-sufficient. Nevertheless, she claims herformer husband did not pay sufficient support when both sheand the children were dependent upon him and now wants a catch-up payment of $47,367. [2] The parties were married in 1963. The mother was 16 years old and unemployed. The father was 21-year-old seasonal worker in the construction trade. Their marriage followed the traditional pattern of father as breadwinner and mother as homemaker. They both took hotel management course in 1967, hoping to work in that industry. The father experienced periodic unemployment thereafter and to make ends meet the mother was forced to take low-paying jobs outside the home. In 1983 they bought small town hotel where they both worked until the business failed in May, 1990. The father then went to Edmonton to look for work while the mother and children remained in Saskatoon. [3] The mother perceives this time as the date of separation. She regards her husband`s departure for Edmonton as abandonment of his family. She testified that he sent no money for two years, leaving her destitute. To feed her children, she was forced to take series of low-paying jobs. She does concede that in 1992 he sent her total of $3,200 and bought her washer and dryer. Nevertheless, she says his contribution was insufficient to meet the family`s need. [4] She did not apply to the Court for support for several reasons. Firstly, she could not afford to hire lawyer. Secondly, whenever she asked him for money, he claimed to be broke. She says she felt sorry for him and continued to hope for reconciliation. When that did not happen, she commenced divorce action in 1996 and filed motion seeking retroactive support. At the time she claimed that both she and two of their three children were dependent. For some undisclosed reason, her motion was adjourned sine die by consent. year later the parties made an unsuccessful attempt to settle their dispute at pre-trial. Another year passed before the mother applied for divorce order. The marriage was dissolved June 17, 1998 and the issues of retroactive child and spousal support were again adjourned sine die at the mother`s request. Why the Court has not been asked to address the issue of support until now is not explained. [5] The father perceives the situation somewhat differently. He does not regard his departure to Edmonton as separation. He says separation was never mentioned and he went to Edmonton to find work. Once there, he found series of low- paying seasonal jobs and was often unemployed. In 1990, he earned about $10,000 plus an unknown amount of unemployment insurance benefits. In 1991, his total income was $16,902. During this two-year period he says he sent his wife money whenever he could. He came home on long weekends and resumed family life, during which time he gave her cash and bought groceries for the household. As well, he commenced paying $375 per month on matrimonial debt of $27,000 owing to member of his wife`s family. Eventually, he paid the debt in full. He also gave an estimated $5,000 per year directly to his daughters because they complained they never got any money from their mother. The testimony of one daughter confirmed some direct payments. [6] He says his wife did not mention separation until 1993. Prior to this time he did not keep record of the money he sent her because it did not occur to him that the question might arise in the future. He began keeping records when his wife talked about separation in 1993. During that year he sent her $9,000. When asked on cross-examination about his contribution to the family, she replied that she would be very surprised if he sent her that much money. However, she acknowledged he did so when shown receipts produced by counsel. She also acknowledged receiving $4,000 in 1994 and $2,300 in 1995. [7] It is readily apparent that the father left his wife and children in poor economic condition when he went to Edmonton in 1990. She had to make out as best she could, with minimal help from him. Given his low income in 1990 and 1991, it is likely he too suffered economic hardship. He did, after all, commence paying $375 per month on matrimonial debt at this time. He should have done better by his family in 1992 when he earned $36,150. She earned only $12,478. He sent her only $3,200 and contributed undetermined sums directly to his daughters. He also should have done better in the years following 1993, but there were extended periods, beginning in 1996, that the daughters lived on their own. By her own admission, the mother`s need for spousal support ended in [8] Nevertheless, when addressing claim for support, the Court should not be expected to assess the adequacy of parent`s economic contribution during the time the family was intact and then make up any inadequacy by imposing retroactive obligation. am not persuaded that the parties separated in 1990. It is rather difficult to determine date of separation. Probably, the parties just drifted into it. In any event, not much turns on the date of separation. The mother was entitled to make claim for support whenever she believed the father`s contribution to be inadequate, whether or not she perceived herself separated from him. But she didnot do so until 1996 and then did not prosecute her claim foranother two years, at a time when neither she nor the childrenwere dependent. [9] The primary purpose of a support order is not tocompensate for past failure, but instead, to satisfy presentneed. Making a retroactive support order would not addressthat purpose. The claim is dismissed. There will be no order

The petitioner sought retroactive child and spousal support of $47,367. No children were presently dependent upon her and she was self-sufficient. The parties married in 1963. The mother was a homemaker until 1983 when they bought and operated a small town hotel which ultimately failed in 1990. The petitioner alleged they separated in 1990 when the father left the province to seek work elsewhere. He sent no money for two years until 1992 when he sent $3,200 and bought a washer and dryer. She commenced a divorce action in 1996 which was adjourned sine die by consent. The marriage was dissolved in June 1998. The respondent did not keep records of money sent as he did not consider they had separated until 1993. HELD: The claim was dismissed. 1)Nothing turned on the actual date of separation which was difficult to determine. The mother was entitled to make a claim for support whenever she believed his contribution was inadequate, whether or not she perceived herself separated from him. 2)The primary purpose of a support order is not to compensate for past failure but to satisfy present need. Making a retroactive order would not address that purpose. She did not make a claim until 1996 and then did not prosecute her claim for another two years, at a time when neither she nor the children were dependent.

7_1998canlii13397.txt

Defendants S.C.A. No. 02623 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Clarke, C.J.N.S.; Chipman and Freeman, JJ.A. BETWEEN: J.B.B. and C.B.B. and J.A.B., W.H.B. and W.C. Respondents Revised Decision: The text of the original decision has been revised to remove personal identifying information of the parties on January 7, 2008 Karen Kinley for the Appellants Andrew Pavey for the Respondents, J.A.B. and W.C. Patricia Dunn for the Respondent, W.H.B. Judgment Delivered: May 1, 1992 Appeal Heard: April 16, 1992 THE COURT: Appeal allowed, decision of Judge of the Family Court set aside and the matter remitted for a new trial, per reasons for judgment of Clarke, C.J.N.S.; Chipman and Freeman, JJ.A. concurring. Publishers of this case please take note that s. 94(1) of the Children and Family Services Act applies and may require editing of this judgment or its heading before publication. Section 94(1) provides: 94 (1) No person shall publish or make public information that has the effect of identifying child who is witness at or participant in hearing or the subject of proceeding pursuant to this Act, or parent or guardian, foster parent or relative of the child. CLARKE, C.J.N.S.: The primary issue in this appeal is whether certain conversations the trial judge had with counsel during the course of trial create an apprehension or perception of bias, as that term is used in the law. Briefly stated, the facts relative to the issue are these. This case concerned a custody application in the Family Court involving two infant children. They were voluntarily placed in the care of the appellants by their birth mother and her male companion who is the natural father of the younger of the two. In due time the Administrator of Family and Children's Services in the province of Nova Scotia, acting pursuant to the Children's Services Act, then S.N.S. 1976, c. 8, authorized the appellants to apply for the custody of the two children, the elder being about three and one‑half years old and the younger, fourteen months. Before the judge at trial were parties with competing interests. The appellants sought custody pursuant to the authority given them by the Minister of Community Services. The, birth mother and her common law companion wanted the custody of the two children returned to them. The natural father of the elder child wanted the custody of his child to be granted to the appellants but in the alternative, if not to them, then to him rather than his former wife who, as noted, was the birth mother of the child. All three parties were represented by their own counsel. After the evidence was called on behalf of the appellants and the evidence of the natural mother, on direct only was heard, the trial judge asked all three counsel to come to his chambers which presumably means his office outside the courtroom. There he had a conversation with them which was subsequently placed on the record by counsel of the appellants. What counsel said and what the judge said appear in the record at pages 117 through 120. It follows: "THE COURT: Yes, ready to proceed? MS. KINLEY: Yes Your Honour, would like to address the Court prior to proceeding with cross examination. Ah, following J.A.B.\'s direct evidence on Friday, ahm, when we adjourned for lunch, when we returned after lunch, ah, Your Honour requested that all three counsel meet with you in your chambers and at that time you indicated that you felt it would be a waste of everyone\'s time to proceed with the trial. Ah, given your opinion of the natural mother, J.A.B., should be granted custody of the two children and that that should be done immediately, ahm, when Counsel was given the opportunity to convey your comments to our clients, ahm, speaking for my own clients I know they were upset and con, and confused ahm by those comments. Ah, after discussion between Counsel and further discussions with our clients, ah, requested again in Chambers that we adjourn this matter to December 10th, being today when that time had already been set aside. Ahm this was due to the fact that my client now felt we needed further time to consider our options. Ahm, both my clients and myself felt that there was evidence yet to be presented that ahm, that should be heard, ahm, so today our options at this time are to continue ah with the trial in the belief that perhaps we\'re wasting our time and waiting (SIC) the Court\'s time or the other option is to request formally that you remove yourself ah from hearing this case, ahm and in the circumstances we would request that you, that you consider removing yourself from the case refer Your Honour to rule ah 1503 from the Family Court Ruling which states that 'where an application ought to be made to or any jurisdiction exercised by Judge by whom proceeding has been heard on trial in whole or in part' and I'll skip over the part that isn't relevant, 'or for any other reason, for any other reason it is impossible or inconvenient for the Judge to act in the proceedings, Judge may either ah by special order by general order applicable to any class of proceeding, nominate another Judge to whom the application will be made or by whom the jurisdiction may be exercised'. Ahm, while my clients realize that Your Honour has experiences in these matters and, and you have heard two and half days of testimony and that you may be in position to make decision at this time, my clients can't help but feel that the outcome has been predetermined without the benefit of all the evidence being presented and without the cross examination of the key witness. So we would request at this time that Your Honour consider making an order under rule 1503, the Family Court Rules nominating another Judge. THE COURT: Well Ms. Kinley must say you've surprised me very much. First of all my recommendation was made in Chambers, now you're getting all this on record for appeal purposes obviously. must say that find that very, very underdone, this is not the way that things are done in Courts today that understand. But perhaps you have found new way to do things. Nevertheless I\'m going to continue with the trial. At the time the trial judge made the remarks imputed to him by counsel and which on the record he has not denied, there remained to be heard the crucial cross examination of the mother of the children, the entire case of the third party being the natural father of the elder child, rebuttal evidence, if any, and the submissions of counsel. After the trial judge made the ruling noted above, he continued the case and rendered a decision awarding custody of the two children to the natural mother and of the younger child to her father, the male companion of the mother. The appellants contend in this appeal that the actions of the trial judge amounted to a denial of natural justice by creating an apprehension of bias. Put another way, the appellants allege he appeared to have decided the case before he heard all the evidence. To them he gave the appearance of closed mind. With these submissions, I agree. The right of all parties to be heard before an‑independent and impartial judge who hears all the evidence that is admissible is the essence of fair trial. Otherwise, the confidence of those whose rights are to be adjudicated upon will be undermined and justice will neither be done nor be seen to be done. That which constitutes reasonable apprehension of bias is well documented by the treatises of legal scholars and the judgments of the courts. Reid and David in their text, Administrative Law and Practice, second edition, write at p. 231: A.. They (referring to courts) consist essentially of neutral judge deciding contests brought before him by others upon facts which are revealed only in hearing attended by all persons having an interest. He decides in accordance with 'the law' which comprises legislation and reports of decisions in similar cases. The keystone in this structure is the neutrality of the judge. Should even the appearance of it be lost the usefulness of the court is at an end and the structure collapses. In celebrated, if overworked, phrase, 'Justice should not only be done, but should manifestly and undoubtedly be seen to be done.' This overriding need for neutrality, in appearance as well as in fact, dictates standard requiring freedom from even the appearance of bias. Nothing less will do. The nature of the tribunal itself governs the nature of the rule. Thus, the standard that courts apply to themselves, called here, for convenience, the 'common‑law' bias rule, does not require proof that bias influenced the result; it is enough if appearances reasonably justify the apprehension that it might have done so." In Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon and Others, [1969] Q.B. 577 (Eng. C.A.), Lord Denning stated at p. 599: ". in considering whether there was real likelihood of bias, the court does not look at the mind of the justice himself or at the mind of the chairman of the tribunal, or whoever it may be, who sits in judicial capacity. It does not look to see if there was real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could he, nevertheless if right‑minded persons would think that, in the circumstances, there was real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand: see Reg. v. Huggins; and Rex v. Sunderland Justices, per Vaughan Williams L.J. Nevertheless there must appear to be real likelihood of bias. Surmise or conjecture is not enough: see Reg. v. Camborne Justices, Ex parte Pearce, and Reg. v. Nailsworth Licensing Justices, Ex parte Bird. There must be circumstances from which reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The court will not inquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right‑minded people go away thinking: 'The judge was biased'." Among the Canadian authorities to which reference should be made is Committee for Justice and Liberty et al. v. National Energy Board (1976), 1976 CanLII (SCC), 68 D.L.R. (3d) 716, where de Grandpre, J. of the Supreme Court of Canada observed at pages 735‑736: The proper test to be applied in matter of this type was correctly expressed by the Court of Appeal. As already seen by the quotation above, the apprehension of bias must be reasonable one, held by reasonable and right‑minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal [at p. 667], that test is 'what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly?' can see no real difference between the expressions found in the decided cases, be they 'reasonable apprehension of bias', 'reasonable suspicion of bias', or 'real likelihood of bias'." Other judgments to like effect include Regina v. McClevis, Ex parte Robbins (1971), 1970 CanLII 1100 (ON SC), C.C.C. (2d) 238, Galligan, J. at p. 241; Blanchette v. C.I.S. Ltd., [19731 S.C.R. 833, Pigeon J. at pages 842‑843; Regina v. Divizio (1986), 1986 CanLII 4714 (ON SC), 32 C.C.C. (3d) 239 (Ont. District Court); Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities, file: 22060, judgment rendered: March 5, 1992, (S.C.C.). There are number of Nova Scotia judgments to which reference should also be made. In the context of this appeal, attention is drawn to Children's Aid Society of Halifax v. M.B. and R.W. (1988), 85 N.S.R. (2d) 34. That case also related to an application for the custody of an infant. The submission of apprehension of bias was advanced to the presiding Family Court judge based upon comments he had made during an earlier application concerning another child of the respondents. In reasoned judgment the Family Court judge reviewed the law and withdrew from the case. He said at p. 38, para. 24: would not want to do anything which might bring the administration of justice into disrepute. have declined jurisdiction because strongly believe that regardless of delay and any hardships my decision may cause to the system of which we are all part, the preservation of respect for the judicial system is of utmost importance." The general law to which have referred has been followed and applied in judgments of this Court. Recent examples include R. v. R.T.J.T. (1989), 93 N.S.R. (2d) 101; Maclntyre v. MacDonald, S.C.A. 02232, June 13, 1990; R. v. Colley (1991), 1991 CanLII 2534 (NS CA), 105 N.S.R. (2d) 178 and R. v. MacLean (1991), 1991 CanLII 2526 (NS CA), 106 N.S.R. (2d) 213. In R.T.J.T. complete and running file concerning the record and other matters of an accused youth had been placed on the judge's bench before the judge heard an application affecting the youth. While there was no allegation of actual bias, the issue was whether the judge's access to the file created reasonable apprehension. In allowing the appeal, Matthews J.A. said at p. 102: The principle applicable in this case is that expressed in The King v. Sussex Justices; ex parte McCarthy, [1924] K.B. 256, at p. 259: >... long line of cases shows that it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. .. In Maclntyre, judge took view of property which was subject of the proceeding before him without notice to the appellant or his counsel. Chipman J.A. stated: ". In the course of his so doing, there were inevitably some communications between the judge and the respondent. While there is no suggestion that any injustice in fact resulted, the perception that arises is such that in our view there should be new trial." In Colley the judge refused counsel of the accused the right to make submissions before his client was committed for trial on several counts of fraud. justice cf the Trial Division quashed the order of committal and remitted the matter to the same judge for rehearing. This court confirmed the order quashing the committal and, in addition, directed that it should not he returned to the same judge who first heard it. Freeman J.A. said at p. 180: reasonable person might arrive at that conclusion. While the words of [the judge] might be innocuous in another context, following as they did the denial of the right of counsel to address the court, they raise reasonable apprehension that his mind was made up. In those circumstances, any decision [the judge] might come to after hearing the submission of counsel would be tainted by the suspicion. We are satisfied the appellant has met the evidentiary burden for setting aside decisions in like circumstances as discussed in de Smith, Judicial Review of Administrative Action (4th Ed. 1980), Stevens Sons Ltd. London, pp. 262‑268." In R. v. MacLean, the trial judge, before hearing submissions of counsel, indicated that he had already written his decision and considered the arguments had already been "summed up". For this court, Chipman J.A. said at pp. 214‑215: In our opinion, it is incumbent upon trial judge to give party appearing before him an opportunity to present argument before making decision on any issue. In particular, party must be allowed to make submissions at the close of the evidence. See R. v. Aucoin, 11979 CanLII 29 (SCC), 1979] S.C.R. 554. In the context of criminal case, these rights are among those guaranteed to an accused as component of fundamental justice under s. of the Charter, and more particularly by s. 11(d) thereof, and by s. 802(1) of the Criminal Code. The trial judge did not expressly deny either the Crown or the respondent the opportunity to present further argument. Indeed, it is clear from reading the portion quoted above that although he told counsel that he had already written his decision, such argument was not precluded. In reality however, reasonable counsel could conclude in the face of such statement that any such argument could be mere formality, could carry little or no weight with the judge and indeed might involve the risk of irritating the court. In our view, whatever way the judge had already written his decision, the appearance of injustice to the losing party was there. The respondent was effectively denied his right to make meaningful closing submission. The situation is not saved by the fact that the trial judge considered the matter summed up on four occasions throughout the hearing. We are unable to imply waiver of the right of final argument in the circumstances which existed here. Indeed, the significance of final argument was recognized by the trial judge himself on February 21st when he adjourned the trial for that very purpose." Since 1982 the Canadian Charter of Rights and Freedoms has entrenched in the Constitution of Canada by s. 11(d) the provision that person charged with an offence has the right to be presumed innocent until proven guilty according to law in fair and public hearing by an independent and impartial tribunal. In the conduct and carriage of civil actions the law of Canada requires the same standard fair and impartial hearing. The test is objective: what reasonable person would think in the circumstances. Here it would be that the judge had made his decision before all the evidence from all the parties was heard. Conversations between the presiding judge and counsel in the judge's chambers during the course of trial relating to the issues at trial are neither protected by immunity nor exempt from the proper application of the law. For the reasons given would allow the appeal, set aside the decision of the judge of the Family Court and any order based thereon, and, finally, would remit the matter to the Family Court for new trial. There will be no costs to any party. C.J.N.S. Concurred in: Chipman, J.A. Freeman, J.A. 90 F.LB. NO. 119 IN THE FAMILY COURT FOR THE PROVINCE OF NOVA SCOTIA BETWEEN: J.B.B. AND C.B.B. and J.A.B., W.H.B. AND W.C. RESPONDENTS BEFORE HIS HONOUR JUDGE ROBERT C. HEBB, Judge of the Family Court for the Province of Nova Scotia HEARD: October 29, 1991; October 30, 1991; December 6, 1991; and December 10, 1991 DECISION: February 7, 1992 COUNSEL: Karen Kinley for the Applicants, J.B.B. and C.B.B.; Andrew Pavey for the Respondents J.A.B. and W.C. Patricia Dunn for the Respondent W.B. S.C.A. No. 02623 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: J.B.B. and C.B.B. and J.A.B., W.H.B. and W.C. Respondents REASONS FOR JUDGMENT BY: CLARKE, C.J.N.S.

During a hearing involving an application for custody contested by three parties, the trial judge heard only the appellants' evidence and the direct examination of the natural mother before calling counsel to his chambers and advising them that the hearing was a waste of time and custody should be granted to the natural mother. Counsel for the appellants subsequently put the matter on record and requested the trial judge withdraw, alleging an apprehension of bias. He refused, and after completing the trial, awarded custody to the natural mother and her common-law companion. The decision was appealed. Allowing the appeal, setting aside the decision and ordering a new trial, that the circumstances created a reasonable apprehension of bias which resulted in a denial of natural justice. In the conduct and carriage of civil actions the law requires a fair and impartial hearing.

6_1992canlii4811.txt

QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 438 Date: 2007 12 03 Docket: DIV. No. 570 of 1997 Judicial Centre: Saskatoon, Family Law Division BETWEEN: BARBARA HELEN FLASCH and GREGORY CHARLES FLASCH Appearing: Barbara Helen Flasch petitioner, on her own behalf Gregory Charles Flasch respondent, on his own behalf JUDGMENT McMURTRY J. December 3, 2007 [1] The respondent father applied to vary an order made May 14, 2002 by Justice M.E. Wright. The order provides for child support, payable to the petitioner mother on behalf of the two youngest children, Michael, born March 15, 1990, and Jessica, born December 30, 1991. Mills J. directed a trial on the issues of the residence of Michael in 2006; the incomes of the father and mother, for the purposes of the Federal Child Support Guidelines [SOR/97-175, as am.] (the “Guidelines”); and, any s. 7 expenses. At the hearing, the parties agreed that it would be beneficial also to address the issue of any ongoing s. expenses. Residence of Michael [2] Jessica and Michael have lived with the mother since the parties divorced on February 21, 1998. In June, 2006, however, Michael began living in Saskatoon in order to be eligible to play with particular AAA baseball team. To that end, his parents entered into guardianship arrangement with his maternal aunt. Although the agreement stipulated that he live with his aunt, in fact, Michael began living with his maternal grandmother on the west side of the city. While there, his mother paid his grandmother $400.00 each month for room and board and she gave Michael an allowance. [3] In July, 2006, the father decided to move from the west side of Saskatoon to larger, more expensive apartment on the east side, to accommodate what he understood to be Michael’s interest in moving in with him and Jerrilyn, Michael’s older sister. The father mistakenly believed that it was necessary for Michael to live on the east side of Saskatoon, when in fact Michael’s attendance at an east side school satisfied the residency requirements of the baseball league. In September, 2006, Michael moved in with his father and Jerrilyn. [4] Michael’s schedule was very busy. In an affidavit filed with the Court, Michael stated that he played baseball at competitive level, requiring couple of hours practice or play each day and road trip every second weekend. In addition to baseball, Michael played football and attended school. He needed vehicle to be able to keep up his activities. (Michael was permitted to file an affidavit, rather than testify as determined that it was not in Michael’s best interests to testify, particularly as the parties are self-represented.) During the summer of 2006, Michael had the use of his mother’s vehicle because she was in Viet Nam visiting her husband. When she returned in August, 2006, Michael had the use of his step-father’s truck. [5] Michael’s use of his step-father’s truck was conditional upon some rules. The truck had to be parked in his grandmother’s driveway every night. It had to be kept cleaned and regularly maintained and Michael could not take the truck out of town without his mother’s permission. The conditions made it hard for Michael to use the truck and live with his father. [6] The father works for CN Rail as railway conductor. He is away from home between seven and sixteen nights month, depending upon the runs he is assigned. When he is in town, he is available to drive Michael, but his vehicle is not available to Michael otherwise. Problems with transportation eventually lead to Michael spending most of his time at his grandmother’s house. In his affidavit, Michael stated that from mid-September, 2006, until the end of January, 2007, he split his time “approximately equally” between his father’s house and his grandmother’s house. [7] The father’s evidence is that Michael spent more nights at his grandmother’s after September because of conditions placed on the truck, although he said that Michael still ate his meals at his father’s house. The father does acknowledge, however, that he was away from home working almost half of every month. The father also acknowledged that Michael had to make arrangements with others to transport him when he lived at his house. The father testified that Michael stopped living with him after car accident on February 22, 2007 when the vehicle Michael was driving at that time was rendered inoperable. The vehicle was truck loaned to him by his paternal uncle in mid- January, 2007. [8] do not find that there is much conflict in the evidence. I am satisfied that from September 4, 2006 until, approximately, February 22, 2007, the parties shared custody of Michael. Whether the shared custody arrangement, which lasted only short period of time, warrants retroactive support order will be addressed next. Shared Custody [9] In Fraser v. Fraser, 2007 SKQB 398 (CanLII); [2007] S.J. No. 580 QL (Sask. Q.B.) (at paras. 12-15), Ryan-Froslie J. summarized the usual approach taken by courts in shared custody situations following the Supreme Court of Canada decision in Contino v. Leonelli-Contino, 2005 SCC 63 (CanLII); [2005] S.C.R. 217: ¶12 As general rule, child support is paid pursuant to s. of the Guidelines in accordance with the applicable Table. One exception to this general rule is s. of the Guidelines which applies when parents “share” custody of their children, and in particular when parent exercises right of access to or has physical custody of child for not less than 40% of the time over the course of year. Section reads as follows: 9. Where spouse exercises right of access to, or has physical custody of, child for not less than 40 per cent of the time over the course of year, the amount of the child support order must be determined by taking into account (a) the amounts set out in the applicable tables for each of the spouses; (b) the increased costs of shared custody arrangements; and (c) the conditions, means, needs and other circumstances of each spouse and of any child for whom support is sought. ¶13 The leading authority with regard to calculating child support pursuant to s. of the Guidelines is the Supreme Court of Canada decision of Contino v. Leonelli-Contino, [2005] S.C.R. 217, 2005 SCC 63 (CanLII). ¶14 Section of the Guidelines provides the Court with discretion in awarding child support in shared custody situations to ensure fairness. That section requires the Court to take into account three factors in determining the appropriate level of child support, namely: (i) The Table support applicable to each party; (ii) Any increased costs associated with the shared custody arrangements; and (iii) The condition, means, needs and other circumstances of each parent and the children for whom support is sought. ¶15 As the Supreme Court of Canada pointed out in Contino, s. does not provide presumption in favour of Table support, nor does it provide presumption in favour of the proposition that parent who exercises access more than 40% of the time will have his or her child support obligation decreased. Rather, s. gives to the Court discretion to review all of the relevant circumstances in an attempt to achieve fair standard of support for the children involved. (Emphasis added) [10] As is noted above, s. directs the court to consider that shared parenting situation exists whenever “a spouse exercises right of access to, or has physical custody of, child for not less than 40 per cent of the time over the course of year. .” In this case, Michael began living with his father at least 40% of the time in September, 2006. This ended in January or February, 2007, which is a period of no more than five months. Thereafter, he resumed living with his grandmother and was supported by his mother. Accordingly, the father does not meet the threshold provided for in s. 9. As Justice Wright explained in Hus v. Hus (1998), 1998 CanLII 13597 (SK QB), 174 Sask. R. 317, [1998] S.J. No. 803: [5] The onus is on the parent wishing to invoke the operation of s. to demonstrate to the court's satisfaction that shared custody arrangement as contemplated by s. is in fact in place, and has been, or will be in place over the course of year. While it is not necessary that there be in all circumstances written agreement or court order to this effect before the onus can be discharged, the court should, in my opinion, exercise caution before imposing s. child support regime on what may be short-term informal custody arrangement. [11] In the absence of shared parenting regime, child support is based on the father’s income and the applicable table. Incomes of the Parties [12] Neither party has filed their 2006 tax return. The father’s T-4 from his long-time employer CN shows earnings of $109,694.49. In evidence he indicated that his union dues for 2006 were much the same as in 2005, which were $1,065.00. Accordingly, find his 2006 income to be $108,629.49. The mother’s 2006 income consisted only of investment income of $1,672.37. The mother also receives an allowance from her husband, from whom she is separated, in the amount of $2,000.00 each month. Section Expenses [13] Both Michael and Jessica have significant expenses in their respective sports, baseball and speed skating. The mother has been responsible for Jessica’s expenses, however, some confusion arose in 2006 with respect to Michael’s. The guardianship agreement, which was for period of three months, provided that the father pay for Michael’s extraordinary expenses. Accordingly, he paid for number of baseball related expenses that previously the mother had paid for. The mother also continued to pay for some expenses. In addition, Michael’s school and clothing expenses were paid by both his mother and his father. [14] The parties have been divorced since 1998. Michael has played AAA baseball since 2004. Jessica has speed skated since 2001. The mother has paid the extraordinary expenses of both children, without reimbursement from the father. It was only in 2006 that the father paid any of Michael’s expenses. Accordingly, 2006 is not the appropriate year to begin reimbursing the father for expenses he may have paid for Michael. To do so would be exceedingly unfair to the mother who has borne the expenses of both children on her own for many years. [15] am satisfied that Michael and Jessica’s expenses related to fees, registration and equipment for baseball and speed skating are extraordinary expenses within the meaning of s. of the Guidelines. am satisfied also that the orthodontic work needed by Michael and the medical/dental fees not covered by the father’s employer’s insurer also fall within s. 7. The baseball and speed skating expenses, as outlined above, may be estimated at $2,000.00 and $1,000.00, respectively, for total of $3,000.00, annually. In addition, the orthodontic work, which is estimated at $2,522.00, should be amortized over two years, which works out to $1,261.00 each year. do not consider the alternative acne treatment, proposed by the mother for Jessica, to be an appropriate health related expense, covered by s. 7, in the absence of medical referral or prescription. Therefore, find the total ongoing s. expenses to be $4,261.00, annually. [16] These parties do not speak to one another, notwithstanding the difficulty it undoubtedly causes their children. It is not practical to order that the mother produce receipts for reimbursement from the father. Two incidents illustrate why not. In the fall of 2006, the mother paid for dental appointment for Jessica and submitted the charge to the father’s insurer for reimbursement. The father was paid by the insurer and he refused in turn to remit the payment to the mother. The second example is the father’s refusal to provide signed insurance forms to the mother, notwithstanding clear direction to do so in the fiat of M-E. Wright J., dated June 28, 2002. In any event, both parties have requested that determine the appropriate amount to be paid by the father each month to cover s. expenses. [17] Section of the Guidelines provides as follows: 7.(1) In child support order the court may, on either spouse's request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child's best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family's spending pattern prior to the separation: (a) child care expenses incurred as result of the custodial parent's employment, illness, disability or education or training for employment; (b) that portion of the medical and dental insurance premiums attributable to the child; (c) health‑related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy and prescription drugs, hearing aids, glasses and contact lenses; (d) extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child's particular needs; (e) expenses for post‑secondary education; and (f) extraordinary expenses for extracurricular activities. (1.1) For the purposes of paragraphs (1)(d) and (f), the term "extraordinary expenses" means (a) expenses that exceed those that the spouse requesting an amount for the extraordinary expenses can reasonably cover, taking into account that spouse's income and the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate; or (b) where paragraph (a) is not applicable, expenses that the court considers are extraordinary taking into account (i) the amount of the expense in relation to the income of the spouse requesting the amount, including the amount that the spouse would receive under the applicable table or, where the court has determined that the table amount is inappropriate, the amount that the court has otherwise determined is appropriate, (ii) the nature and number of the educational programs and extracurricular activities, (iii) any special needs and talents of the child or children, (iv) the overall cost of the programs and activities, and (v) any other similar factor that the court considers relevant. Sharing of expense (2) The guiding principle in determining the amount of an expense referred to in subsection (1) is that the expense is shared by the spouses in proportion to their respective incomes after deducting from the expense, the contribution, if any, from the child. Subsidies, tax deductions, etc. (3) Subject to subsection (4), in determining the amount of an expense referred to in subsection (1), the court must take into account any subsidies, benefits or income tax deductions or credits relating to the expense, and any eligibility to claim subsidy, benefit or income tax deduction or credit relating to the expense. Universal child care benefit (4) In determining the amount of an expense referred to in subsection (1), the court shall not take into account any universal child care benefit or any eligibility to claim that benefit. [18] As noted above in s. 7, the parties are responsible for their proportionate share of expenses according to their income. am attributing income to the mother in the amount of $2,000.00 each month which is the allowance she receives from her estranged husband. Accordingly, for the purposes of s. 7, the mother’s income is $25,672.37. The father’s income is $108,629.49. The father’s proportionate share is 80%; the mother’s is 20%. The current s. expenses total $4,261.00 yearly. The father’s share is 80% of that amount, or $3,408.80. Paid monthly, the amount is $284.00. [19] am directed by the order for trial by Mills J. to determine, amongst other things, the incomes of the parties. Although the mother did not bring an application to vary child support upward, the filing of the application to vary by the father is sufficient to re-determine the issue of child support based on current incomes. The current order, dated May 12, 2002 provides for child support, payable to the petitioner mother on behalf of the two youngest children, Michael, born March 15, 1990, and Jessica, born December 30, 1991, in the amount of $1,065.00 each month. The support order is based on the father’s income at that time of $87,794.00. The father’s income is considerably higher now. Beginning December 1, 2007, the father will pay support in the amount of $1,486.00 each month, based on income of $108,629.49, on behalf of Michael and Jessica, for as long as they remain children within the meaning of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). In addition, the father will pay $284.00 each month, beginning December 1, 2007, for the s. 7 expenses, until further order, or for as long as Michael and Jessica remain children within the meaning of the Divorce Act. [20] The mother seeks costs for two court appearances, before this was set down for trial, when she was represented by counsel. The mother is entitled to costs in the amount of $500.00, payable forthwith. J. J. E. McMurtry

The parties have two children, a son born March 1990 and a daughter December 1991. A trial on the issues of the son's residence in 2006, the parties' income for the purposes of child support and any s. 7 expenses was held. HELD: 1) From September 2006 to February 2007 the parties shared custody of the son. This is a period of no more than 5 months. Thereafter he resumed living with his grandmother and was supported by his mother. The father does not meet the threshold provided for in s. 9 of the Guidelines. 2) The father's income from employment shows earning of $108,629. The mother's income consisted only of investment income of $1,672.37 and allowance of $2,000. 3) The parties have been divorced since 1998. The son has played baseball since 2004. The daughter has speed skated since 2001. The mother has paid the extraordinary expenses of both children, without reimbursement from the father. It was only in 2006 that the father paid any of the son's expenses. Accordingly, 2006 is not the appropriate year to begin reimbursing the father for expenses he may have paid for him. To do so would be exceedingly unfair to the mother who has borne the expenses of both children on her own for many years. 4) The children's expenses related to fees, registration and equipment for baseball and speed skating are extraordinary expenses within the meaning of s. 7 of the Guidelines. The expenses may be estimated at $2,000 for baseball and $1,000 for speed skating, annually. The orthodontic work, which is estimated at $2,522 should be amortized over two years. The alternative acne treatment, proposed by the mother for the daughter is not an appropriate health related expense in the absence of a medical referral or prescription. The father's proportionate share is 80% and the mother's is 20%. Paid monthly the father's payment is $284. 5) Although the mother did not bring an application to vary child support upward, the filing of the application to vary by the father is sufficient to re-determine the issue of child support based on current incomes. The current support order is based on the father's income of $87,794. His income is considerably higher now. His child support payments are adjusted accordingly.

4_2007skqb438.txt

J. Q.B. A.D. 2000 No. 57 J.C. S.C. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SWIFT CURRENT BETWEEN: AL FUCHS operating in the name and style of Formula Real Estate Service and DANNA KOETHLER and SASKATCHEWAN JUSTICE, THE OFFICE OF THE RENTALSMAN RESPONDENTS Al Fuchs appeared in person Jacob (Jack) R. Hoffart for the respondent, Danna Koethler JUDGMENT McLELLAN J. May 5, 2000 [1] This is an appeal from a decision of the Deputy Rentalsman ordering the landlord, Bradley Calvin Dafoe/Formula 1 Real Estate Service/Al Fuchs, to pay the sum of $3,414.50 to the respondent, Danna Koethler. [2] The notice of appeal sets forth the following grounds of appeal: THIS APPEAL IS BROUGHT to have determined the following question of law: The responsibility of representative at law for the obligations of landlord. The Rentalsman’s order incorrectly includes and orders the appellant, representative of the landlord to be jointly financially responsible for this award. The appellant was not party to the hearing in his own name but in his capacity as representative of the landlord and therefore has no responsibility for the financial obligations of the landlord. We respectfully request the appellant be removed from Rentalsman’s order. AND- THIS APPEAL IS BROUGHT to have determined the following question respecting the Jurisdiction of the Rentalsman:1. To impose an award on the appellant whose [sic] was acting not in his own right but as a representative for a landlord. 2. To impose an award on an appellant who had not received notice that he was to be a named party at a hearing where an award could be made against him. 3. To impose an award against an appellant who was unable to prepare and present a defence on his own behalf. [3] The decision indicates that Mr. Dafoe was the landlord and the appellant was his authorized agent. [4] The material received from the Rentalsman clearly shows that the appellant received notice that he was named as a party. In fact, in the hearing notice, Formula 1 Real Estate, Al Fuchs is the only party named as landlord. There is no mention of Mr. Dafoe. [5] The hearing notice also sets forth that the order requested is for the landlord to pay damages of $8,779.94. An itemized list of the damages claimed was attached to the notice. [6] There is no merit to the suggestion by the appellant that he did not receive notice of hearing where an award could be made against him. Furthermore, there is nothing to indicate that the appellant was unable to prepare and present a defence on his own behalf. [7] The only question left for determination is whether an agent of the landlord may be held liable for damages to tenant. [8] An appeal from the Rentalsman to this Court can only be brought on question of law. [9] The Residential Tenancies Act, R.S.S. 1978, c. R-22 (the “Act”) provides the Rentalsman with the legislative authority to hold hearing into dispute between landlord and tenant. After the hearing the Rentalsman may issue an order for damages. Section 47(1) provides as follows: 47(1) An application for an order respecting any residential tenancy dispute may be made: (a) to the Rentalsman, in the form and manner that the Rentalsman may direct .... (2) On receiving an application pursuant to clause (1)(a) or determining pursuant to subsection (1.2) that hearing should be held, the Rentalsman: ... (c) after holding the hearing pursuant to clause (b), may make any order the Rentalsman considers just and equitable in the circumstances including an order: ... (iii) requiring the payment of damages .... [10] The definition section contained in the Act provides the following definition of landlord: In this Act: ... (d) “landlord” means person who grants to person the exclusive right of tenancy of residential premises and includes: (i) an agent or personal or legal representative of, or any other person acting on behalf of, landlord .... [Emphasis added] [11] The definition contained in s. 2(d)(ii) was considered by Smith J. in Lachance v. Auzano Asset Management Inc. et al. (1999), 1999 SKQB (CanLII), 184 Sask. R. 107 (Q.B.), where she considered the issue now before me. In that case Smith J. held at para. [18] am satisfied that this definition is determinative of this point, against the appellant. This conclusion is confirmed by the consideration that the Act is intended to provide an informal and efficient procedure for determining disputes between landlords and tenants, and that this goal is facilitated by permitting such individuals as property managers to assume the role and status of landlords for the purpose of invoking the procedures and remedies of the Act.... agree with the conclusion reached by Smith J. [12] In the result, there is no error of law by the Deputy Rentalsman. The appeal is therefore dismissed.

An appeal from a decision of the Deputy Rentalsman ordering the landlord to pay $3,414.50 to the tenant. In issue was the jurisdiction of the Deputy Rentalsman to impose an award on the appellant who was acting as a representative for the landlord and not in his own right and who had not received notice that he was to be a named party at a hearing where an award could be made against him and who was unable to prepare and present a defence on his own behalf. HELD: The appeal was dismissed. 1)The material clearly showed the appellant received notice that he was named as a party and in fact was the only party named as landlord. An itemized list of the damages claimed was attached to the notice. There was nothing to indicate he was unable to prepare and present a defence. 2)There was no error of law. The definition contained in s.2(d)(ii) was considered in Lachance v. Auzano Asset which held s.2(d)(ii) was determinative of the issue. The Act is intended to provide an informal and efficient procedure for determining landlord and tenant disputes. This goal is facilitated by permitting such individuals as property managers to assume the role and status of landlords (Lachance).

6_2000skqb202.txt

IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Woods v. Gates, 2008 NSSC 358 Date: 20081015 Docket: 1201-060295 Registry: Halifax Between: Lana Dawn Wood v. Andrew William Gates Respondent LIBRARY HEADING Judge: The Honourable Justice Leslie J. Dellapinna Heard: October 14, 2008 in Halifax, Nova Scotia Oral Decision: October 15, 2008 Written Decision: October 15, 2008 Subject: Application by former wife to vary the child support terms of the Corollary Relief Judgment, pursuant to Section 17 of the Divorce Act. Summary: The parties were married in November 1993. They had two children, aged 12 and 7. They separated in October 2004 and were divorced in March 2007. Their Corollary Relief Judgment incorporated an agreement that the parties would share joint custody of the children and share parenting of the children approximately equally. The parties also agreed that child support would be based on the difference between what the husband would otherwise pay to the wife for the support of the two children and what the wife would otherwise pay to the husband if the shared custody arrangement did not exist. Because of the significant discrepancies in their income, the husband agreed to pay to the wife $1,268.00 per month in child support. In November 2006 the former wife applied to vary child support. Because of the husband’s increased income, the child support, based on the same formula, was increased $1,506.00 per month. The former wife now seeks to again increase the level of child support based on the former husband’s increased income and a decline in her income. The former wife operated her own business which produced negligible income. However, in each of the four years prior to the application she had withdrawn from her RRSP between $10,000 and $14,000. She argued that her RRSP income should not be considered when calculating her contribution to the support of the children. She also asked the Court to review the amount of child support paid by the Respondent going back to when the parties first separated and asked that he be ordered to pay any deficiency between what he did pay and what the Court considers he should have paid. Issue: Should the child support amount be varied? Should the former wife’s RRSP income be taken into account for determining the quantum of child support? Should the Court review the child support paid back to the date of the parties separation and should retroactive award be granted? Undue Hardship, the imputing of income for child support purposes. Result: The previous variation order was a consent order. Both parties agreed to its terms and both parties had legal advice prior to agreeing to its terms. The order was approved by the Court and was not appealed. Under those circumstances the Court was not prepared to retroactively vary the terms of the Corollary Relief Judgment or the terms of the last variation order effective on a date prior to the date of the last order. There were, however, changes of circumstances since the granting of the last order. The Court was not asked to change the method or formula used by the parties and their original agreement when calculating the amount of child support to be paid. The monthly amount of child support was therefore increased. The former wife’s RRSP income was considered in the calculation of child support. It was a recurring income figure over the past four years, including 2008. It is income that forms part of Line 150 and is not an adjustment contemplated by Schedule III. The Court was also asked by the former wife to increase the level of child support based on undue hardship. The Court did not conclude that she would suffer undue hardship as result of the level of the child support ordered. The former Husband asked the Court to impute income to the former wife because in his view she was intentionally underemployed by continuing to operate a business that failed to produce a reasonable level of income rather than obtain employment. The Court did not impute income to the Wife. Most businesses require time to become established. If in the near future the former wife could not draw a reasonable level of income from the business it would be open to the Court at that time to reconsider that issue. Costs of $1,000.00 were ordered payable to the former Husband (to be paid within 60 days). THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. IN THE SUPREME COURT OF NOVA SCOTIA (FAMILY DIVISION) Citation: Woods v. Gates, 2008 NSSC 358 Date: 20081015 Docket: 1201-060295 Registry: Halifax Between: Lana Dawn Wood v. Andrew William Gates Respondent Judge: The Honourable Justice Leslie J. Dellapinna Heard: October 14, 2008, in Halifax, Nova Scotia Written Decision: October 15, 2008 Counsel: Lana Dawn Wood, Self-Represented Andrew William Gates, Self-Represented By the Court: [1] This is an application by Ms. Lana Wood to vary the child support terms of the Corollary Relief Judgment herein as varied by way of consent order dated May 1, 2007. The parties were married on November 19, 1993 and have two children, Dylan who is now 12 and Julianna who is now 7. They separated on or about October 31, 2004 after almost 11 years of marriage. [2] With the assistance of counsel they signed separation agreement dated February 9, 2005 by which they settled the various issues arising out of their separation including the division of their assets and debts, the parenting of their children, spousal support and child support. Among other things, the agreement provided that the parties would share joint custody of the children, that each would have relatively equal time with the children and each would contribute financially to the support of the children. Specifically, paragraphs 15 (a) (b) (c) and (e) of the Agreement reads as follows: (a) The parties agree that the income of the Wife is approximately $5000.00 per annum and the income of the Husband is approximately $102,500.00 per annum. (b) The Husband covenants and agrees to pay child support to the Wife pursuant to the Federal Child Support Guidelines and in accordance with the Nova Scotia table in the amount of $1,268.00 per month, payable in two installments of $634.00 each on the 1st and 15th of each month, commencing December 1, 2004. (c) The parties covenant agree to share, in proportion to their respective incomes the net cost of child care expenses incurred for the children of the marriage taking into account any subsidies, benefits or income tax deductions or credits relating to the childcare expenses. ... (e) The parties agree to exchange Income Tax Returns by July 1st of each year, commencing July 1, 2005. The parties agree that the amount of child support payable shall be adjusted as of September 1st of each, commencing September 1, 2005, and shall be set out in accordance with the Federal Child Support Guidelines, Nova Scotia table. The amount of child support payable shall be calculated by calculating the difference between the amount that each party would otherwise pay if the child support order were sought against each of the parties based on each party’s Line 150 Total Income as disclosed in his or her Income Tax Return from the previous year. [3] The Respondent, Andrew Gates, also agreed to pay spousal support of $500.00 per month to the Applicant with the amount and duration of the spousal support reviewed as of September each year, beginning September 1, 2005. [4] The parties were divorced on March 7, 2006 and the Corollary Relief Judgment, granted the same day, incorporated the terms of their separation agreement. [5] In November 2006 the Applicant applied to vary the child and spousal support terms of the Corollary Relief Judgment. That application was resolved by way of consent order dated May 1, 2007. By way of that Order, the Respondent transferred to the Applicant by way of RRSP spousal rollover $40,000.00 and in return the Applicant waived her entitlement of spousal support. Regarding child support, clauses 15 (c) and (e) to which have referred earlier were repealed and replaced with the following: 5(a) With the exception of private school tuition, the parties covenant and agree to share, in proportion to their respective incomes for the previous calendar year, Section expenses pursuant to the Child Support Guidelines as they relate to the children of the marriage, taking into account any subsidies, benefits or income tax deductions or credits relating to any such expenses. 5(b) With regard to private school tuition, the father agrees that he shall assume full responsibility for tuition costs for each of the two children for the school years 2007-2008, 2008-2009 and 2009-2010. Private schooling shall continue for the children beyond the 2009-2010 school year only if there is agreement by both parents and an agreement with regard to funding of this expense in future years. 5(c) The parties acknowledge they have exchanged income tax returns as of July 2006 and the amount of child support for the period September 1, 2006 to August 1, 2007 has been calculated such that the father pays to the mother $1,506.00 per month ($753.00 paid on the 1st and the 15th of each month). The parties shall continue to exchange income tax returns by July 1st of each year and child support shall be adjusted as of September 1st of each year based upon the previous calendar year incomes of the parties. These incomes shall be based on the income tax return, line 150 Total Income of each party, plus or minus such adjustments as are appropriate pursuant to the Child Support Guidelines. The amount of child support payable shall be calculated by determining the difference between the amount that each party would otherwise pay if child support order was sought against each of the parties based upon their incomes for child support purposes. [6] The Applicant now seeks to vary the child support terms of that order. The Applicant submits that as of September 1, 2007 the Respondent’s net child support payment to her should increase for number of reasons including that his income increased, that her contribution to child support should decrease because other than her RRSP income, she has no other income for child support purposes, and she argues that the RRSP income should not be considered when calculating her contribution. It is also argued that if the RRSP income is to be considered then her contribution to the support of the children should be reduced as the amount that she would be required to pay under the Variation Order and the Child Support Guidelines, that is to say the amount set off against the Respondent’s contribution, would cause her undue hardship. She has also asked the Court to review the amount of child support the Respondent should have paid going back to when the parties first separated. [7] Subsections 17 (1) (a) and (4) of the Divorce Act read as follows: 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 (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. [8] The Court is to determine if there have been changes in circumstances as provided for in the applicable guidelines since the making of the last variation order when considering further variation order. [9] Section 14 of the Child Support Guidelines says: 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). [10] The last variation order was consent order. Both parties agreed to its terms and both parties had legal advice prior to agreeing to its terms. The Order was approved by the Court and was not appealed. There is no evidence that the terms of that Order had been obtained by fraud or misrepresentation or for any other reason should be disregarded by this Court. There is no reason for the Court not to accept the terms of that Order or the Corollary Relief Judgment before it as being appropriate at the time. The Court is therefore not prepared to retroactively vary the terms of the Corollary Relief Judgment or vary the terms of the last variation order effective on any date before the date of the last Order. [11] The Court is satisfied however, that there have been changes in the incomes of the parties since the last variation order which would permit the Court to consider variation of the last variation order. [12] The Consent Variation Order addressed the issue of child support up to and including August 2007. The amount of support would then be subject to change as of September 1, 2007 based on the parties’ income earned in 2006, and reviewed again on September 2008 based on their incomes earned in 2007. [13] The Court has not been asked to change the method by which the child support is to be calculated each year other than the respondent has asked for some kind of certainty being put into the Court’s order to minimize, if not eliminate, the possibility of ongoing disputes between the parties each summer, of the child support that is to be paid the following year. The methodology agreed to by the parties with the assistance of their lawyers is reasonable and sound and it conforms with the Child Support Guidelines. [14] The Court cannot predetermine years in advance the income of either of the parties. The Court should not prevent either party from exercising their right to apply to the Court to vary child support in the appropriate circumstances. If either party abuses that right the Court can sanction their conduct, at the time, appropriately. [15] The calculation of the Respondent’s income for the support that is to commence in September of 2007 is relatively straight forward. In 2006, his line 150 total income was $126,874.00 including dividends that were grossed up for tax purposes from $2,000.00 to $2,500.00. That $500.00 gross up is to be adjusted pursuant to Schedule III of the Guidelines. He also had professional fees, which is another Schedule III adjustment, of $515.00. After adjusting his income for child support purposes, his income was $125,859.00 in the year 2006. The table amount for two children based on that amount of income is $1,643.00 per month. In 2007 his total income on line 150 of his tax return was $145,344.31. Again, that is to be adjusted by the $500.00 gross up of his dividends and $481.04 for professional fees, leaving him with total income figure for child support purposes of $144,363.27 which would require child support payment for two children of $1,850.00. The Court is satisfied that the Respondent’s tax returns accurately reflect his actual income. should mention though that included in the Respondent’s income in most years, including 2007, was his bonus income paid based on the performance and profitability of the engineering firm for which the Respondent works and in which he is shareholder. Many years, including 2007, the Respondent, like other shareholder/employees in this firm, is required to spend all or part of his net or after tax bonus money on the purchase of shares in the firm, thus receiving no added funds in his hands in spite of his bonus. Sometimes he can even be required to spend more on the purchase of shares than he received in net after tax bonus income. The firm requires that of all their employee/shareholders in order to buy out retiring members or to keep the business adequately funded. Therefore, there are years when the Respondent is paying child support based on level of income significant portion of which he does not actually have at his disposal. 2007 was one of those years. [16] The Applicant’s income for child support purposes is also fairly easy to calculate. In 2006 her line 150 total income was $25,793.00 including $6,000.00 in spousal support, $12,500.00 in RRSP income and $1,200.00 being her universal child care benefit. The spousal support and UCCB should be deducted as an adjustment pursuant to Schedule III. She asked the Court not to include her RRSP income as it is non-recurring item. There are no reasons in the Court’s view not to include her RRSP income for child support purposes. It is in fact recurring income figure according to her tax returns. She deregistered between $10,000.00 and $14,000.00 in RRSP income in each of the last years, including 2008. She relies on this income as part of her household revenue. It is income that forms part of line 150 and is not an adjustment contemplated by Schedule III. The Court is aware of the cases where RRSP funds were not included in income for the purposes of calculating child support but those cases can be distinguished from the Applicant’s circumstances. So, after adjusting her line 150 by deducting spousal support and the University Child Care Benefit received in 2006, her income for child support purposes in that year was $18,593.00 which would require child support payment pursuant to Section of the Guidelines for two children of $277.00 per month. The applicant asked the Court to reduce that amount based on undue hardship. Section 10 of the Guidelines says (1) On either spouse’s application, court may award an amount of child support that is different from the amount determined under any of sections to 5, or if the court finds that the spouse making the request, or child in respect of whom the request is made, would otherwise suffer undue hardship. [17] Subsection lists number of circumstances which may cause spouse or child to suffer undue hardship and that list is not exhaustive. am not convinced that the Applicant would suffer undue hardship by having her share of the child support offset against the Respondent’s payment. She has not provided sworn statement of how she and her partner spend their income. She has not provided her statement of property and debts. She has not provided current sworn statement of her partner’s income, although the Court does have copy of his 2007 tax return. She and her partner only work part time. [18] Based on the evidence, the Court cannot say that the Applicant or her family would suffer undue hardship as contemplated by the Guidelines. They live in nice area. The children go to private school, paid for by the Respondent. The children take part in many activities. The Applicant’s business paid for the Applicant and her partner to travel to the Carribean number of times in the past year. The Court does not know of anything that they are doing without or may do without if the Applicant is required to pay her share of the child support. [19] Using the formula in the Variation Order, the Applicant’s contribution to the children’s financial support is modest and there is no reason to decrease it. [20] In 2007 her line 150 was $14,042.28 including UCCB of $700.00 and spousal support of $2,500.00. After adjustment of those two figures, her income for child support purposes is only $10,842.28 requiring child support payment of only $97.00 per month. For all of the same reasons am not prepared to reduce that amount. [21] The Applicant has her own business. It is incorporated and over the past four years it has shown profit at times but overall has been losing money. The Respondent has asked the Court to impute income to the Applicant. He argues that many of the company’s expenses benefit the Applicant-such as rent in her house and travel to the Carribean. He has also suggested that if the Company isn’t profitable it is time for the Applicant to get “real job” even it if it is part-time position. He argues that throughout their marriage, the Applicant worked and earned an income in the $30,000 to $52,000 range. [22] The Applicant says she is limited in what she can do because of an injury she suffered as result of motor vehicle accident in November 2004. She also says that if given another year, her Company can be profitable. [23] seriously considered imputing income to the Applicant. She claims she is limited in what she can do and yet she puts long hours into her business and apparently travels great deal as result of her business. She, in the Court’s opinion, is capable of working at least part-time. Still, every business needs some time to be established. [24] The Court is prepared to give the Applicant another year, that is to say until the end of her Company’s fiscal year in the Spring of 2010 to show meaningful profit, and by then, be in position to provide the Applicant with an income by way of employment income or dividends. If the Company is not profitable by then and if the matter is brought back before the Court, the Court may seriously consider imputing income to her if she doesn’t already by then seriously consider other options. [25] In summary, beginning September 1, 2007 to and including August 1, 2008, the Respondent shall pay to the Applicant net child support of $1,366.00 per month, calculated by deducting $277.00 from $1,643.00. Assuming he has paid $1,506.00 each of those months, he has overpaid by total of $1,680.00. [26] Beginning September 1, 2008 to and including August 1, 2009, the Respondent shall pay the net sum of $1,753.00 per month, calculated by deducting from $1,850.00 the Respondent’s contribution of $97.00 per month. Assuming in September and October of this year he paid $1,506.00 for each of those months, he has underpaid total of $494.00 for those two months, leaving net overpayment due back to him of $1,186.00 which overpayment can be deducted from the Respondent’s November child support payment. [27] Regarding Section expenses, will not be varying paragraph (a) of the Variation agreement that was incorporated into the Consent Variation Order, but for clarification purposes the orthodontic expenses that are being incurred for Dylan both past and future are to be shared by the parties proportionate to their incomes as and when those payments are due. The amount to be shared is the net amount after taking into account any insurance coverage or tax savings, if any. [28] Costs are awarded to the Respondent in the amount of $1,000.00 to be paid by the Applicant within 60 days of October 15, 2008. J.S.C. (F.D.) Halifax, Nova Scotia

The corollary relief judgment provided that the parties would share parenting of their two children approximately equally. Child support would be based on the difference between what each party would otherwise have paid if the shared custody arrangement had not been in effect. The wife now applied to have the amount paid by the husband increased due to his increase in income and a decline in her income. Following the divorce, the wife had opened her own business which only produced negligible income and in each of the past four years, she had withdrawn between $10,000 and $14,000 from her RRSP, which amounts she argued should be not considered when calculating her contribution to the children's support. She also sought to have the court go back to when the parties first separated to have the husband pay any deficiency which the court might find. The husband requested that the court impute income to the wife on the basis that she was intentionally underemployed by continuing to operate a business that failed to produce a reasonable level of income. Application granted in part; monthly amount of child support payable by the husband is increased based on his increased income; the wife's RRSP income was considered in the calculation of child support as it had been a recurring income figure over the past four years; no income imputed to the wife but if she could not draw a reasonable level of income from the business within the next year, it would be open to the court to reconsider this issue. Given that the previous variation order was a consent order and both parties had legal counsel at the time and had not appealed that order, the court was not prepared to retroactively vary its terms.

8_2008nssc358.txt

2003 SKQB Q.B.G. A.D. 2002 No. 2163 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA IN THE MATTER OF THE LICENSED PRACTICAL NURSES ACT AND BYLAWS AND IN THE MATTER OF COMPLAINTS AGAINST WILLIAM WHATCOTT OF REGINA, SASKATCHEWAN BETWEEN: WILLIAM WHATCOTT and THE SASKATCHEWAN ASSOCIATION OF LICENSED PRACTICAL NURSES RESPONDENT Thomas A. Schuck for the applicant Merrilee Rasmussen, Q.C. for the respondent JUDGMENT GUNN J. January 7, 2003 [1] The applicant seeks the following relief:(a) A declaration that the charges against the applicant cannot constitute professional misconduct without contravening provisions of the Charter and The Saskatchewan Human Rights Code;(b) An order of prohibition to prohibit the discipline committee of the Saskatchewan Association of Licensed Practical Nurses (“SAPLN” or the Association”) from hearing the said charges;(c) A declaration that the charges are res judicata;(d) A request for an order for particulars;(d) Costs. [2] The applicant is member of the Association and is charged with professional misconduct contrary to s. 24 of The Licensed Practical Nurses Act, 2000, S.S. 2000, c. L-14.2 (the “Act”). The Notice of Hearing provided to the applicant sets out that professional misconduct is alleged based on his: ... engaging in conduct that displayed actions that: (i) were harmful to the best interests of the public or the members; and/or (ii) tended to harm the standing of the profession; and/or (iii) are breach of the Act or the bylaws, including the Code of Ethics. [3] For the purposes of this application the facts alleged in the Notice of Hearing are admitted by the applicant. They are the following: (i) On or about April 19 and April 26, 2002, May 20, 2002, May 16, 2002, and June 28, 2002, he publicly demonstrated/picketed with approximately five other people outside of the office of Planned Parenthood Regina’s Sexual Health Centre located at 1431 Victoria Avenue in the City of Regina; (ii) He carried signs which were seen by the public and patients or potential patients of the health facility that were printed with words to the effect “Planned Parenthood Aborts Babies”. He also shouted such phrases as “Planned Parenthood will give you Aids”, “This place is the world’s biggest baby killer”, “Don’t let Planned Parenthood corrupt you”, and “Planned Parenthood murders innocent babies”, etc. The statements referred to are incorrect and he knew or should have known them to be incorrect about Regina Planned Parenthood; (iii) He shouted at patients or potential patients of the health care facility that they were “fornicators” and showed people pictures of aborted fetuses; (iv) He took photographs of the demonstration; (v) Patients and staff of the health care facility were intimidated by this conduct; (vi) People or patients were potentially denied their right to health care as result of these actions; (vii) Patients or potential patients of the health care facility had or may have had their identity revealed through the taking of photographs. [4] These facts are alleged to support the conclusion that the applicant is guilty of professional misconduct as described above. THE LEGISLATION [5] The Act provides framework for dealing with complaints about the professional competence and professional conduct of members of the profession. Both the counselling and investigation committee and the discipline committee are statutorily created. When the Association receives written complaint, the counselling and investigation committee is required to investigate it. Once it concludes its investigation, the committee is required to make written report to the discipline committee recommending one of the following pursuant to s. 26(2) of the Act: (a) that the discipline committee hear and determine the formal complaint set out in the written report; or (b) that no further action be taken with respect to the matter under investigation because: (i) the matter has been resolved with the consent of the complainant and the member who is the subject of the investigation; or (ii) in the opinion of the counselling and investigation committee, no further action is warranted on the facts of the case. [6] What constitutes “professional incompetence” and “professional misconduct” is defined by ss. 23 and 24 of the Act and these definitions must guide the investigation committee and the discipline committee in its findings. licensed practical nurse who is aggrieved by decision of the discipline committee has the right to appeal that decision either to the Council of the Association or directly to the Court, and by leave on question of law to the Court of Appeal. 1. Provision of Particulars. 2. Are the charges against the applicant res judicata? 3. Should the SALPN discipline committee be prohibited from proceeding with the hearing of the charges? Re: 1. Provision of Particulars. [7] The notice of hearing sets out one charge against the applicant, that being that he is guilty of professional misconduct, as that is defined in the Act. Section 24 of the Act sets out the definition of professional misconduct. The Notice of Hearing particularizes the factual allegations on which the charge is based. These allegations are specific as to time and the nature of the allegations. [8] No order will be made for the provision of any further particulars at this stage. Re: 2. Are the charges against the appellant res judicata? [9] The applicant submits that the matters in question in this case are res judicata. am not satisfied this is so as the only matter previously considered by the discipline committee of the SALPN dealt with whether there was any professional misconduct established arising out of criminal convictions for illegal picketing prior to the applicant becoming member of SALPN. Re: 3. Should the SALPN discipline committee be prohibited from proceeding with the hearing of the charges? [10] The applicant seeks writ of prohibition to prohibit the discipline committee from proceeding with the hearing into his conduct on the grounds that his Charter rights will be infringed if the discipline committee determines that whatever occurred while he was picketing Planned Parenthood amounts to professional misconduct within the meaning of the Act. [11] The SAPLN takes the position that this Court should not entertain the application where there is convenient alternative remedy provided in the Act. The Act provides an elaborate and detailed complaints investigation and discipline process, with access to the courts through rights of appeal for the member being disciplined. [12] The leading case on this issue is Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] W.W.R. 676 (S.C.C.) which establishes the doctrine of the “adequate alternative remedy” as bar to judicial review. The existence of an adequate alternative remedy is held to constitute bar because judicial review is discretionary remedy. Thus, if an adequate alternative method of securing justice for the parties is available it ought to be accessed. [13] Mr. Justice Beetz, writing for the majority, set out the test to be applied in making the determination of whether or not an alternative remedy is adequate in the following manner at p. 697: In order to evaluate whether appellant’s right of appeal to the senate committee constituted an adequate alternative remedy and even better remedy than recourse to the courts by way of prerogative writs, several factors should have been taken into consideration, among which the procedure on the appeal, the composition of the senate committee, its powers and the manner in which they were probably to be exercised by body which was not professional court of appeal and was not bound to act exactly as one nor likely to do so. Other relevant factors include the burden of previous finding, expeditiousness and costs. [14] The Supreme Court re-examined the issue in Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (SCC), [1995] S.C.R. at 31, Lamer, C.J. set out the factors to be considered in determining whether or not to enter into judicial review as follows: ... [T]he convenience of the alternative remedy, the nature of the error, and the nature of the appellate body (i.e., its investigatory, decision-making and remedial capacities). do not believe that the category of factors should be closed, as it is for courts in particular circumstances to isolate and balance the factors which are relevant. [15] In addition, the applicant alleges that his Charter rights will be infringed if the discipline committee determines that whatever occurred while he was picketing Planned Parenthood amounts to professional misconduct within the meaning of the Act. It is not possible to determine whether this would be so without hearing to determine the facts. [16] I am satisfied that the Act provides an adequate alternative remedy which should be pursued and find there are no special circumstances here upon which I would exercise my discretion to determine the merits of this application or provide the relief sought by the applicant. [17] In the exercise of my discretion, the applicant’s application is dismissed in its entirely. The SAPLN shall have its costs of this application to be taxed.

The applicant sought a declaration that the charges against her could not constitute professional misconduct without contravening the Charter and Saskatchewan Human Rights Code; an order of prohibition to prevent the SAPLN discipline committee or Association from hearing the charges; a declaration that the charges are res judicata; an order for particulars; costs. HELD: The application was dismissed in its entirety with taxed costs to SAPLN. 1)No order for further particulars was made at this time. The Hearing Notice particularizes the factual allegations and is specific as to time and their nature. 2)The only matter previously considered by the discipline committee dealt with whether there was any professional misconduct established arising out of criminal convictions for illegal picketing prior to the applicant becoming a member of SALPN. 3)The Act provides an adequate alternate remedy, which should be pursued. There were no special circumstances upon which the court could exercise its discretion to determine the merits of this application or to provide the relief sought.

6_2003skqb3.txt

J. Dated: 20021108 2002 SKCA 122 Docket: 500 THE COURT OF APPEAL FOR SASKATCHEWAN Coram: Bayda C.J.S., Sherstobitoff Jackson JJ.A. LAWRENCE WILLIAM DIDUCK and HER MAJESTY THE QUEEN COUNSEL: Lawrence W. Diduck on his own behalf Lane Wiegers for the Crown DISPOSITION: On Appeal From: Q.B. Crim. 1886, J.C. of Yorkton Appeal Heard: November 5, 2002 Appeal Dismissed: November 5, 2002 (orally) Written Reasons: November 8, 2001 Reasons By: The Honourable Mr. Justice Sherstobitoff In Concurrence: The Honourable Chief Justice Bayda The Honourable Madam Justice Jackson SHERSTOBITOFF J.A. (orally) [1] Mr. Diduck, the procedure in this Court is for the judges to prepare for the hearing of cases by reading all of the record of proceedings in advance of the hearing of the appeal. In this case, all of the members of the Court read your notice of appeal, the relevant portions of the transcript of the trial proceedings, and the Crown factum prior to hearing your arguments today. We are all fully familiar with what happened. [2] We are unanimous in our opinion that your appeal against both conviction and sentence must be dismissed. [3] Your first ground of appeal was that transcripts of court proceedings in previous cases were not available to you, and that the Court would not subpoena certain witnesses whom you wished to call to give evidence on your behalf. We all agree that Mr. Justice Zarzeczny made no error in ruling that all of the evidence to be derived from these sources was irrelevant to the charges against you, being too remote in time, being unrelated to the charges which were the subject matter of the trial, and being unnecessary to establish your state of mind which was adequately established by your own evidence and your summation to the jury. [4] Your other ground of appeal was that your state of mind at the time you made the telephone calls which were the subject of the charges somehow exonerated you from responsibility for them. This defence was put to the jury through your own evidence, through your summation to the jury, and by the following portion of the judge’s summation to the jury: Finally, the accused, Lawrence Diduck, gave evidence on his own behalf at this trial. He testified that he had had number of previous encounters and dealings with the RCMP which caused him to be fearful of them. He alleges he was seriously assaulted and injured during one of those encounters at his home. He testified that he had filed number of formal complaints against the members of the RCMP and that these were being investigated. His evidence was that he was frustrated with and fearful of the RCMP and with the legal proceedings against him generally involving the RCMP and others and it was in these circumstances that when he received the phone message from Constable Rusty Spragg in January of 2001, he made the phone calls and left the two messages he did at the Esterhazy and Langenburg RCMP offices out of- acting out of fear, anger and frustration. In these circumstances for these reasons, he testifies his purpose and intent in the messages overall was to be left alone; it was not his purpose and intention to be threatening. [Transcript pp. 190-91] Your defence, such as it was, was fully and fairly put to the jury which chose not to accept it. Since your defence was fully and fairly put, it cannot be said that you did not have fair trial. [5] As to the appeal against sentence, since the sentence was limited to time already served by you while awaiting trial, it is now moot: that is, there is no issue to be decided. Were we to rule upon its fitness, we would have no difficulty in finding it fit. [6] The appeals against both conviction and sentence are dismissed.

Appeals of sentence and conviction on the grounds the transcripts of court proceedings were not available; the court would not subpoena certain witnesses on his behalf; his state of mind when he made the telephone calls exonerated him. HELD: The appeals against conviction and sentence were dismissed. The judge made no error in ruling that all of the evidence from the prospective witnesses and transcripts was irrelevant as being unrelated to the charges and too remote in time. The appellant's state of mind was adequately established by his own evidence and the summation to the jury. The defence was fully and fairly put to the jury which chose not to accept it. The sentence appeal was moot since it was limited to time served while awaiting trial. The Court would have found the sentence to be fit in any event.

c_2002skca122.txt

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 133 Date: 20091125 Between: Docket: 1662 Lori Ann Olszewski (Willick) Appellant (Petitioner) and Bryan Douglas Albert Willick Respondent (Respondent) Coram: Lane, Smith and Ottenbreit JJ.A. Counsel: James J. Vogel and Joanne C. Moser for the Appellant Gregory G. Walen, Q.C. and Deidre L. Aldcorn for the Respondent Appeal: From: 2008 SKQB 296 (CanLII) Heard: September 15, 2009 Disposition: Appeal Allowed Written Reasons: November 25, 2009 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Lane The Honourable Madam Justice Smith Ottenbreit J.A. I. Introduction [1] Lori Ann Olszewski (Willick) (the mother) in January 2007 applied to vary an order for maintenance dated January 9, 1992, for her daughters Nicole and Kirsti (the daughters). She also applied for determination that Bryan Willick (the father) was in arrears of maintenance and that he provide to her years of retroactive child support. [2] This appeal is about: (i) whether Nicole and Kirsti, who were over the age of 18, had withdrawn from the father’s charge and were no longer children of the marriage within the meaning of the Divorce Act[1] (the “Act”) and therefore disentitled to maintenance after September 2006 when they attended post-secondary education; and (ii) whether the maintenance the father paid in the past for them was sufficient and appropriate. [3] For the following reasons we have concluded that the learned trial judge made no palpable and overriding error in his finding that the father was not in arrears of maintenance and that there would be no order for retroactive child support. Nevertheless, we have also concluded that he was in error in determining that Nicole and Kirsti were no longer children of the marriage within the meaning of the Act. [4] The parties married on August 25, 1979, separated in March of 1989, and divorced in November of 1989. At the time of the separation Nicole was years old and Kirsti mere months old. At the date of trial Nicole and Kirsti were nearly 23 and 20 respectively. The father was an airline pilot and subsequently moved to Hong Kong where he resided with his new wife while the daughters were growing up. The daughters lived with and were raised by the mother in Saskatchewan. Pursuant to an inter-spousal agreement dated July 29, 1989, the mother had sole custody of them. The agreement provided that the father was to get generous access on reasonable notice, the father was to pay the mother child support in the amount of $450 per month for each child and among other provisions, the father would maintain scholarship fund for the daughters’ education until they were 18. The father cashed in any RESPs when he left Canada and no further scholarship fund was established by him for either of the daughters thereafter. [5] On January 9, 1992, Carter J. made an order varying the child support from $450 per month to $850 per month per child. Her decision was appealed and eventually confirmed by the Supreme Court of Canada. The mother filed the order with the Saskatchewan Maintenance Enforcement Office (“Sask. MEO”). [6] In 1997 the father, who was still living in Hong Kong, became aware of the Federal Child Support Guidelines[2] (“the Guidelines”) through his lawyer who had received request from the mother’s lawyer to look into variation of child support. After reading the Guidelines the father was co-operative and in letter dated November 10, 1997, he sent the mother his salary statement and calculated what he owed pursuant to the Guidelines based on his salary in Hong Kong dollars divided by the then exchange rate. That amount was $3,133.63 per month. He provided post-dated cheques for this amount in Hong Kong dollars to the Hong Kong District Court. [7] In December of 1997 the father’s then counsel wrote to the mother’s counsel indicating that he would advise his client that the existing order of 1992 would remain in effect until varied and requested the mother’s counsel prepare short written agreement between the parties to reflect the new maintenance payments. [8] After request by the mother for s. expenses, the father indicated in February 1998 that he would pay an additional $510.00 per month and increased the child support to $3,644.00 per month for the next 12 months. He told the mother at that time that he would get his lawyer to write up new child support agreement to that effect. Between December of 1997 and June of 1998 letters between their respective counsel regarding who would do the work to draft the agreement went back and forth, but no written maintenance agreement was ever formalized. [9] Each year between 1998 and 2006, after receiving salary statement from his employer, the father would calculate the monthly amount of child support payable pursuant to the Guidelines by converting his income from Hong Kong dollars to Canadian dollars and then using the Guidelines to calculate the amount of child support payable in Canadian dollars, which would then be converted back to Hong Kong dollars at the same rate of exchange. He then provided the Hong Kong District Court 12 post-dated cheques in Hong Kong dollars pursuant to his calculations and the Court would convert the cheques into Canadian dollars and forward that amount to the Sask. MEO. The father maintained approximately the same level of payment in Hong Kong dollars as he had calculated in February 1997, based on his income at that time, over number of years despite incurring series of salary decreases between 1999 and 2003. The exchange rate between the Canadian currency and the Hong Kong currency fluctuated and thus the mother rarely, if ever, received the amount of $3,644.00 Canadian between January 1, 1998 and September 1, 2006. The mother received payments in excess of $3,644.00 for every month except one from January 1998 until February of 2003 and thereafter received monthly amounts of less than $3,644.00. [10] In 2003 the Sask. MEO told the father that he was obligated to pay maintenance in the amount of $3,644.00 per month. The Hong Kong District Court told the Sask. MEO that there was no order or agreement for fixed amount of child support of $3,644.00 per month. The Sask. MEO acknowledged in 2005 that there was no such agreement taken out in 1998 and that it would continue to collect pursuant to the 1992 order of Carter J. In 2006 the Sask. MEO again attempted to enforce payment in the amount of $3,644.00 month. [11] The mother made no applications for variation of the 1992 order and throughout the late 1990s and up to August 2006, accepted and received the fluctuating payments made by the father based on his calculation in Hong Kong dollars. The father discontinued child support in September of 2006. [12] According to the Sask. MEO, assuming constant obligation of $3,644.00 per month, the father was in arrears in the amount of $26,730.54 to the end of August 2006. [13] Nicole went directly from high school to university and attended the University of Regina for 2003, 2004 and 2005. The father paid her complete tuition, books and ancillary expenses of post-secondary education up to the summer of 2006 and her books for the 2006 fall semester. Nicole continued her studies in the fall of 2006 and graduated with Bachelor of Fine Arts degree in December 2007. She was employed thereafter. Kirsti attended the University of Regina in Pre-Police Studies in September of 2006. She continued her university studies until December 2007 at which time she quit and was accepted into SIAST in two-year Resource and Environmental Law diploma program beginning in the fall of 2008. During her 1½ years in Pre-Police Studies, Kirsti failed three classes and abandoned one out of total of 12 she took. [14] The father had kept in contact with the daughters throughout the years. Initially, the father travelled to either Saskatoon or Regina to visit the daughters. The father estimated that he visited the daughters in Regina 10 times after they moved there in 1998/1999. During the visits in Saskatoon and Regina the father attended their dance practices and softball and basketball games as well as other functions in which the daughters participated. He would over the years meet with them couple of times year. He would send them birthday cards and give them presents. He invited them to travel with him. Christmas presents were usually given to the daughters at New Years when they would typically celebrate Christmas with the father at the cottage of his parents. Over the years the daughters continued to have consistent and ongoing relationship with the father’s family, primarily his parents and members of his extended family. [15] The father would call the daughters on almost monthly basis until September of 2006. The father also e-mailed the daughters regularly after e-mail became popular. The father complained that after 2003, his relationship with his daughters changed and became progressively more of financial relationship. Once Nicole went to university the father had difficulties obtaining any information from Nicole as to what and how she was doing at university. In January of 2006 the father, in response to one of Nicole’s demands for money, asked to see her academic records and briefly obtained access to them. [16] Nicole, on her own behalf and Kirsti’s behalf, e-mailed the father on September 4, 2006, asking for tuition and book payments for the fall semester of 2006. The father replied on September requesting that Nicole provide him access to her school records and schedule and talk to him about her educational plans. He also indicated that he was prepared to pay for the school expenses. He asked Kirsti to discuss her educational plans with him as well. He received no reply to these requests. Despite this the father paid for school books for the daughters for the 2006 fall semester but nothing more. By November 1, 2006, the daughters’ stepfather and mother had paid for their 2006 fall tuition and continued to pay for Nicole’s and Kirsti’s post-secondary education expenses thereafter. [17] After September 2006 there was no contact between Kirsti and the father and only minimal contact between the father and Nicole. The father testified that his daughters were not providing him any information in the fall of 2006 about their post-secondary educational requirements and as result of this and the fact that litigation commenced in January 2007, there was no further communication with them. Nicole tried to phone her father at Christmas 2006 but found his number disconnected. Nicole testified that in the summer of 2007 she attempted to communicate with her father who was then living in Calgary by asking him to meet her in Banff. He did not do so despite the fact that she was working there for six weeks. She indicated that she “hadn’t been great at trying to get hold of him in the last little bit”. Kirsti made no attempt to contact her father. III. Decision of the Trial Judge [18] The learned trial judge determined that there was no agreement that the father would pay fixed amount of child support in the sum of $3,644.00, but that the father’s payments pursuant to the Guidelines fluctuated because of the exchange rate and his salary. He held that the mother failed to provide to the father any evidence of s. expenses after the father ceased paying these expenses and that the arrears of $26,730.54 calculated by the Sask. MEO could only be for s. expenses. He determined that the mother took no steps to collect or account for those expenses and as result it would be inequitable to require the father to pay them. He therefore found no arrears of maintenance existed for the period prior to September 2006 and did not order retroactive maintenance to that date. [19] The trial judge then reviewed the relevant provisions of the Act and the Guidelines and determined that in September of 2006 both daughters were over 18, that they were no longer presumptively entitled to receive child support and that the burden of proving that they were entitled to support lay on the mother. He then applied the factors set out in Zaba v. Bradley[3] and Farden v. Farden[4] relevant to determining if the daughters were “children of the marriage”. [20] The trial judge found that the terms of the parties’ inter-spousal agreement indicated both parents intended the two daughters to enter into post-secondary education some time in the future. He found that neither of the daughters carried full credit load in any semester. He determined that Kirsti never applied for student loan or other financial assistance and questioned whether Nicole had applied. He observed that Nicole switched programs without informing her father. He determined that Kirsti did not advise her father she was going to attend university in the fall of 2006 and did not inform her father at all what her educational intentions were. He found Kirsti’s academic performance was poor. He concluded both daughters obtained part-time employment over the years earning substantial amounts of money and was not satisfied that the daughters did not have the ability to contribute to their own support. [21] The trial judge then did considerable analysis on the last Farden factor, i.e., whether Nicole and Kirsti unilaterally terminated their relationship with their father. He found that from the time of separation the father had desire to maintain relationship with the daughters and not merely be supplier of money. He found that the father would telephone the daughters every month to six weeks and send them e-mails and that he always initiated conversations with the daughters. Although the daughters claimed that they did not have an address or phone number to contact the father or send birthday cards, the trial judge did not accept their evidence. The trial judge found that there was no reciprocity from the two daughters and that it was basically one-way relationship unless the daughters wanted something from their father. He found that there was no substantial contact from Kirsti or Nicole after September of 2006. He determined that despite the efforts made by the father the daughters did not wish to maintain meaningful relationship with the father and that the only relationship they wanted was monetary one. He concluded that the daughters were not entitled to treat him in disdainful manner and yet continue to reach into his wallet. At para. 53 of the judgment, the trial judge stated: In this regard, it has been held that: father-child relationship is more than simple economic dependency. The father is burdened with heavy financial responsibilities and the child has very few duties in return. It was reasonable to demand that child who expected to receive support continue some type of relationship with her father in the absence of any conduct by the father which might justify the child’s neglect of filial duties. See: Fernquist v. Garland 2005 SKQB 519 (CanLII), 2005 CarswellSask 821; 22 R.F.L. (6th) 371 where Klebuc J. quoted from Law v. Law (1986), R.F.L. (3d) 458, 1986 CarswellOnt 284 (Ont. H.C.) [23] After considering the issue of unilateral termination and the other relevant Farden factors he found that the daughters were no longer children of the marriage after September of 2006. Although not expressly stated by the trial judge it can be inferred that he concluded that the daughters had unilaterally withdrawn from the relationship with their father. It is clear that among all the other Farden factors canvassed by the trial judge this conclusion was the determining factor and he held that the daughters were no longer entitled to maintenance. Issues [24] The issues in this appeal can be reduced to the following: 1. Was there an agreement in 1997 to pay specified or other maintenance? 2. Was the father in arrears of maintenance payments and is retroactive maintenance payable to September 2006? 3. Were the daughters “children of the marriage” within the meaning of the Divorce Act after September 2006? V. Analysis A. Standard of Review [25] The standard of review in cases concerning maintenance was set out in Hickey v. Hickey[5] as follows: 11 Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, significant misapprehension of the evidence, or unless the award is clearly wrong. These principles were stated by Morden J.A. of the Ontario Court of Appeal in Harrington v. Harrington (1981), 1981 CanLII 1762 (ON CA), 33 O.R. (2d) 150, at p. 154, and approved by the majority of this Court in Pelech v. Pelech, 1987 CanLII 57 (SCC), [1987] S.C.R. 801, per Wilson J.; in Moge v. Moge, 1992 CanLII 25 (SCC), [1992] S.C.R. 813, per L’Heureux-Dubé J.; and in Willick v. Willick, 1994 CanLII 28 (SCC), [1994] S.C.R. 670, at p. 691, per Sopinka J., and at pp. 743-44, per L’Heureux-Dubé J. Because the determination of support involves the trial judge in the exercise of judicial discretion regarding significant factual issues, such determination attracts high level of deference. B. Was there an agreement in 1997 to pay specified or other maintenance? [26] The trial judge found that there was no agreement that the father would pay fixed amount of child support in the sum of $3,644.00. We agree with the trial judge’s analysis of this issue and his conclusion for the reasons that he gave. It is supported by the evidence. We cannot say there is any error in principle or significant misapprehension of the evidence with respect to this issue or that this finding is clearly wrong. C. Was the father in arrears of maintenance payments and is retroactive maintenance payable to September 2006? [27] The trial judge found that it would not be just and equitable to require the father to pay the $26,730.54. We agree with the trial judge’s analysis of this issue and his conclusion for the reasons he gave. It is supported by the evidence. We cannot say that there is any error in principle or significant misapprehension of the evidence with respect to the issue, nor is the finding clearly wrong. D. Were Nicole and Kirsti “children of the marriage” within the meaning of the Divorce Act? [28] Whether any child over the age of majority is still “child of the marriage” for the purpose of the Act is governed by s. 2(1)(b). It reads as follows: (1) In this Act, “child of the marriage” means child of two spouses or former spouses who, at the material time, (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; [29] The issue of post-secondary education and its effect on child’s status was addressed in Jackson v. Jackson[6] by Ritchie J. as follows: Many of the conflicting decisions on this question in various provincial Courts are referred to in the reasons for judgment of Ruttan J., which are now reported in 1971 CanLII 987 (BC SC), [1971] W.W.R. 374, but for the purposes of this appeal adopt the reasoning expressed by my brother Laskin when, sitting as judge of the Court of Appeal of Ontario in Tapson v. Tapson [1969 CanLII 541 (ON CA), [1970] O.R. 521, D.L.R. (3d) 727.], he said: It was strenuously argued by counsel for the father that the relevant words of s. 2(b) of the Divorce Act must be given an ejusdem generis construction… do not think that the Divorce Act should be given, in any of its provisions, constricted construction. hold that child is unable, for cause within the terms of the Divorce Act, to provide for herself or to withdraw herself from the charge of parent if that child is in regular attendance, as in this case, in secondary school, pursuing an education in the ordinary course designed to fit her for years of life ahead. Ritchie J. also indicated that where to draw the line on this issue is left to the discretion of the trial judge in the particular circumstances of the case subject to appeal. This issue simply put is ultimately whether child is still dependent and to what extent. This requires the inquiry set out in Zaba and Farden and the factors outlined therein including unilateral termination of the relationship. [30] The case law indicates that the threshold is high for finding that child’s termination of the relationship with the parent is determinative of the child’s status and entitlement to maintenance. [31] In Hamel v. Hamel[7] the father sought to terminate child support for his 20-year-old daughter on the basis that she had terminated the relationship with him. In that case the father’s efforts to contact the daughter were no greater than those of the daughter to contact the father. This Court found the daughter was still entitled to support. The Court stated: [17] The father asserts that Christine unilaterally terminated the relationship, but it must be remembered that Mr. Hamel was absent from the country for six months, having not informed his family that he was going to be absent. Upon his return, he did not contact the daughter and when asked to contribute to her support he advised the daughter to contact him. This she did on one occasion, but when they were unable to fix time neither she nor he made any further efforts. It would have been premature to make an order that she had unilaterally withdrawn from his charge, even assuming that is the applicable law in case such as this. [18] In light of the case law, the evidence does not demonstrate that she unilaterally withdrew from her father. Indeed, the father’s efforts to contact the daughter have been no greater than those of the child. [32] In Saunders v. Saunders[8] this Court dismissed the argument that 20-year-old university student was not child under parental charge. In that case the father had no communication with his child for approximately five years and educational decisions were made without consulting him. [33] In Rebenchuk v. Rebenchuk[9] Scott C.J.M. observed at para. [56] Termination of the parent/child relationship is particularly difficult issue. In my view, selfish or ungrateful children who reject the non-custodial parent without justification should not expect to be supported through their years of higher education. But this factor rarely stands alone as the sole ground for denying support unless the situation is “extremely grave” (Pepin v. Jung, [2003] O.T.C. 401 (Sup. Ct.); 2003 CanLII 2048 (ON SC), [2003] O.J. No. 1779 (S.C.J.)). [34] Counsel for the mother argued that in order for rejection of parent alone to be determinative factor, the circumstances must be unilateral, unjustifiable and extremely grave. Whether all of these factors need to be present in order for withdrawal to be determining factor is not necessary to decide in this case. We agree however that unilateral withdrawal rarely stands alone as factor disentitling an adult child to maintenance and that the threshold for such finding is high. [35] As an initial observation, what is clear from all the evidence in this case is that the father and the daughters did not have conventional father-daughter relationship. This is because the father separated from the mother and daughters early on and he could at best have only long-distance relationship since he lived in Hong Kong. Over the years as the daughters were growing up, the father and daughters continued to have contact with one another by phone, e-mails and in person right up to September of 2006. The trial judge found that from the time of separation the father had desire to maintain relationship with the daughters. On the evidence as whole the father and daughters through the years had reached kind of equilibrium although it was devoid of many of the usual filial elements. [36] There was, prior to 2003, what can be described as consistent relationship between father and daughters if not an overly filial relationship. It had deteriorated by September 2006. It is clear from the e-mails between the father and the daughters tendered to the Court that the father was expecting respect, acknowledgment of his efforts and information about their lives from the daughters. In the three years prior to 2006 the daughters in their responses to the father, did little to fulfil this expectation and contacted him primarily for money. The trial judge found that they treated him with disdain; supportable conclusion based on all the evidence. [37] Despite the lack of filial respect the father doggedly continued to foster the relationship with his daughters. It is understandable that he would by September of 2006, after receiving little information about Nicole’s academic performance, nothing about Kirsti’s academic intentions and hurried request for money for school, have very high level of exasperation. The father’s last e-mail of September 6, 2006, did not indicate that he was refusing to pay the daughters’ tuition, but rather that he would like information and once he got that he was prepared to pay tuition. The request for career paths and information was reasonable parental request. [38] It is clear from the evidence that the lack of communication after September of 2006 between father and daughters was mutual with each stonewalling the other except for few abortive attempts by Nicole in 2007 to reconnect with her father. However, this does not necessarily mean that the daughters had withdrawn from the relationship with the father unilaterally. The father could have stayed in contact with the daughters despite the litigation and their failure to provide him with academic records and otherwise communicate about their education. The father did not reciprocate Nicole’s attempt at reconnection. As in Hamel, the father’s efforts to contact the daughters were no greater than the daughters’ to contact him. [39] The father considered that he had an obligation to support the daughters post-secondary education right up to September 2006 and despite their disdain he recognized financial dependency if not an emotional one. The father even as late as September 2006 acknowledged in his last e-mail that he was still prepared to pay for their university education. That recognition is consistent with the recognition in Jackson that child who attends post-secondary education to fit themselves for the future may not be able to withdraw the parents’ charge. The financial dependency of the daughters did not suddenly end because of the lack of communication. [40] However, it is understandable why the daughters provided the father no further information on their studies after September 2006. Their mother had intervened by paying for their university. If getting their education paid was motivation for the daughters’ communication with the father in the past, the mother’s intervention certainly removed that motivation. To Nicole’s credit she nevertheless made an attempt thereafter to reconnect without asking for money. [41] With respect, the learned trial judge placed too much emphasis on the daughters’ poor treatment and disdain of the father. His finding that the daughters did not wish to maintain a meaningful relationship with the father misapprehends the evidence respecting the historical and ongoing nature of their relationship. The fact that the emphasis of the relationship after 2003 shifted, does not imply that they had no meaningful relationship in their own way. The quality of the parent/child relationship by itself rarely determines the matter. The proper conclusion to be drawn from all the evidence of the relationship before September 2006 and the relative silence after September 2006 is that father and daughters were fighting and this mutual fight was prolonged and sustained by the litigation and the intervention of the mother. However, all of this does not mean that they had withdrawn from the relationship with him unilaterally. Even if the circumstances as a whole are construed as a unilateral withdrawal by the daughters, the high threshold for a finding that it disentitles the daughters to maintenance has not been met. [42] In our view the other Farden and Zaba factors canvassed by the trial judge do not in and of themselves or together lead to the conclusion that the daughters are no longer “children of the marriage” within the meaning of the Act. It is clear that the daughters were not able to withdraw from the father’s charge for the purposes of their education after all the factors are considered and balanced, and that they are still “children of the marriage” and entitled to some maintenance during their post-secondary education theoretically starting September 2006. [43] Given our conclusion respecting whether the daughters are “children of the marriage”, further factual issues germane to determining the proper amount of maintenance order come into play. The matter will be remitted back to the trial judge to determine the extent to which the father is obligated to pay maintenance for Nicole and Kirsti after September of 2006, taking into account s. 3(2) of the Guidelines, either applying the table amount plus s. 7 expenses or, if the Court considers that approach to be inappropriate, an amount that it considers to be appropriate having regard to the conditions and means, needs and other circumstances of the daughters and the financial ability of each of the parties to contribute to the support of the daughters. Many of the same factors canvassed by the trial judge in respect of the issue of whether the daughters were “children of the marriage” will again be at play respecting his determination under s. 3(2) of the Guidelines of what is appropriate. Without limiting the scope of the trial judge’s inquiry or discretion in this regard, examples of such factors may include the unjustifiable failure of the daughters to keep their father informed of their educational situation for the 2006 fall semester and how that affects the father’s obligations for that semester as well as the ability of the daughters and mother to contribute to the costs of their education. [44] As indicated at the hearing, the application of the mother for fresh evidence is dismissed. This evidence is more properly dealt with by the trial judge if he deems it appropriate or necessary. Each party will bear their own costs in this Court and the issue of costs in the Court below is left to the trial judge. DATED at the City of Regina, in the Province of Saskatchewan, this 25th day of November, A.D. 2009. “Ottenbreit J.A.” OTTENBREIT J.A. concur “Lane J.A.” LANE J.A. concur “Ottenbreit J.A. for” [1] R.S.C. 1985, c. (2nd Supp.). [2] S.O.R./97-175, as am. [3] (1996), 1996 CanLII 4930 (SK CA), 18 R.F.L. (4th) 1, 137 Sask. R. 295 (C.A.). [4] (1993), 1993 CanLII 2570 (BC SC), 48 R.F.L. (3d) 60 (B.C.S.C.). [5] 1999 CanLII 691 (SCC), [1999] S.C.R. 518. [6] 1972 CanLII 141 (SCC), [1973] S.C.R. 205 at pp. 217-18. [7] 2001 SKCA 115 (CanLII), [2002] W.W.R. 441. [8] (1988), 1988 CanLII 5165 (SK CA), 14 R.F.L. (3d) 225, 66 Sask. R. 115 (C.A.). [9] 2007 MBCA 22 (CanLII), 279 D.L.R. (4th) 448.

The issues on appeal are whether the parties' children, who were over the age of 18, had withdrawn from the father's charge and were no longer children of the marriage within the meaning of the Divorce Act and therefore disentitled to maintenance after September 2006 when they attended post-secondary education and whether the maintenance paid in the past by the father was sufficient and appropriate. HELD: Appeal allowed. The trial judge made no palpable and overriding error in his finding that the father was not in arrears of maintenance and that there would be no order for retroactive child support. Nevertheless, the trial judge was in error in determining that the children were no longer children of the marriage within the meaning of the Act. The matter is remitted to the trial judge to determine the extent to which the father is obligated to pay maintenance for the children after September 2006. 1) The father and daughters did not have a conventional relationship. The father separated from the mother and daughters early and, since he lived in Hong Kong, could only have a long-distance relationship. The relationship deteriorated in 2006. It would be accurate to describe the daughters as treating their father with disdain. However, this does not necessarily mean that the daughters had withdrawn from the relationship with the father unilaterally. The father could have stayed in contact with the daughters despite the litigation and their failure to provide him with academic records. The father's efforts to contact the daughters were no greater than the daughters' to contact him. The father recognized the financial dependency of the daughters. Their dependency did not end because of the lack of communication. 2) The trial judge placed too much emphasis on the daughters' poor treatment and disdain of the father. His finding that the daughters did not wish to maintain a meaningful relationship with the father misapprehends the evidence respecting the historical and ongoing nature of their relationship. The fact that the emphasis of the relationship after 2003 shifted does not imply that they had no meaningful relationship in their own way. The proper conclusion to be drawn from all the evidence of the relationship before September 2006 and the relative silence after that time is that father and daughters were fighting and this mutual fight was prolonged and sustained by the litigation and the intervention of the mother. This does not mean that they had withdrawn from the relationship with him unilaterally. The high threshold for a finding that it disentitles the daughters to maintenance has not been met.

b_2009skca133.txt

S.C.A. No. 02181 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Jones, Macdonald and Chipman, JJ.A. BETWEEN: CATHERINE MCINNIS and HAROLD CROWELL, Director Social Planning Department, City of Halifax Respondent Vincent Calderhead for the Appellant Ms. Beatrice M. Renton for the Respondents Appeal Heard: March 30, 1990 Judgment Delivered: April 12, 1990 THE COURT: Appeal allowed without costs, decision of Chambers judge and any order based thereon set aside, application of the appellant for an order in the nature of certiorari allowed, decision of the Social Assistance Appeal Board quashed, and the application of the appellant for social assistance for the period June 19, 1989, to the date of the birth of her son remitted to the Social Services Department of the City of Halifax, per reasons for judgment of Macdonald, J.A.; Jones, J.A. concurring and Chipman, J.A. dissenting. MACDONALD, J.A.: This is an appeal from the decision of Mr. Justice Rogers in Chambers, whereby he dismissed the appellant\'s application for an order in the nature of certiorari to quash the decision of the Social Assistance Appeal Board for the City of Halifax, which affirmed the rejection of the appellant\'s application for municipal social assistance as an expectant mother. The decision of Rogers J. is now reported in (1990), 92 N.S.R. (2d) 254. The material circumstances are that on June 19, 1989, Catherine McInnis, an unmarried, pregnant, 16 year old girl, applied to the Social Services Department of the City of Halifax for municipal social assistance. Her application was based on the eligibility category for "expectant mothers" under Municipal Social Assistance Policy 1.2.5 (M.S.A. Policy 1.2.5). Her application was refused because she was under 19 years of age and was living with and being supported by her mother and stepfather. An appeal from such refusal was dismissed by the Social Assistance Appeal Board on the ground that M.S.A. Policy 1.2.5, although allowing for the Municipality to consider support for an unmarried mother pending birth, was not mandatory but rather discretionary. In its decision the Appeal Board went on to say: “.. In this case, the Municipality has indicated they are prepared to assist Catherine's parents with all of the extra expenses for food, clothing and any additional shelter expenses caused by the birth of their grandchild. The Family Maintenance Act states that the parents are responsible for the financial support of their children until age 19 and the Board accepts the Municipality's argument that they are not obliged at law to provide assistance directly to Catherine. The Municipality is willing to accept an application for support from Catherine's parents, however, it appears that they would be ineligible because their budget information shows surplus. The Municipality will provide support to Catherine's parents for Catherine's child once the child is born." M.S.A. Policy 1.2.5 of the City of Halifax provides as follows: "1.2.5 SINGLE HEAD OF FAMILY single head of family is that person who maintains home for herself/himself and one or more of her dependent children. single head of family may be: a. separated parent b. divorced parent c. deserted parent d. widowed parent e. an unmarried parent f. parent having spouse in an Institution If the separation or desertion is the result of common‑law relationship, the applicant shall be considered an unmarried parent unless previously married. An applicant who is currently living common‑law relationship or who has remarried shall not be considered as single head of family. Procedure Where it is indicated that the applicant is in one of the above categories they are expected to obtain alternate income, ie. gain support from the spouse or possible father and apply for Family Benefits, Canada Pension or any resource where she might be eligible for benefits. If considered able, the applicant is expected to become self‑supporting through gainful employment. UNMARRIED MOTHER PENDING BIRTH An unmarried mother pending birth can be considered eligible for assistance when she provides medical confirming her pregnancy and outlines an acceptable case plan (a plan which demonstratively indicates actions on part of the U.M.P. that will lead to an improved quality of life for her and her child." In dismissing the appellant's application for an order in the nature of certiorari to quash the Appeal Board's decision, Mr. Justice Rogers said (p. 256‑57): “Section 1.2.5 deals with the policy applicable to single heads of family. To be single head of family eligible for assistance one must first 'maintain' home for herself/himself and 'one or more of her dependent children' and may be separated parent, divorced parent, deserted parent, widowed parent, an unmarried parent or parent having spouse in an institution. Catherine McInnis certainly does not fall within this definition of eligibility for assistance. Catherine McInnis, however, maintains that she is eligible because of the last paragraph of the policy with respect to single heads of family, entitled 'Unmarried Mother Pending Birth'. This paragraph, however, located as it is within the boundaries of the policy section respecting single heads of family, can only have reference to the earlier provisions of s. 1.2.5 and in my opinion is just method of extending eligibility to single head of family who is about to become an unmarried parent although not yet one. The key point here is that Catherine McInnis, although an expectant mother, is not the head of family maintaining home for herself and dependent child. It is Catherine's stepfather who is the head of family and maintaining the household in which Catherine lives." The single issue raised on this appeal is that: "The Learned Trial Judge erred in interpreting Halifax Social Services Policy 1.2.5." The responsibility for providing social assistance is provincial one. The federal, government, however, cost‑shares social assistance under the Canada Assistance Plan (1985, R.S.C. Chap. C‑1). Social assistance is based on need. If such "need" is long‑term or likely to be so, it is provided through the Family Benefits Act, S.N.S. 1977, c. 8. Shorter term assistance is provided by the various municipalities under the Social Assistance Act, S.N.S. 1970, c. 16. It is this latter Act with which we are concerned on this appeal. Part II of that Act is entitled "Municipal Assistance Interpretation". person in need is defined in that part in s. 19(e) as follows: "19(e) 'person in need' means person who, by reason of adverse conditions requires assistance in the form of money, goods or services;" The Act provides for the creation of social service committees within each municipal unit. Section 23(1) of the Act reads as follows: "23(1) Subject to this Act and the regulations the social services committee shall furnish assistance to all persons in need as defined by the social services committee who reside in the municipal unit." Section 23(1) of the Act places a mandatory responsibility upon social service committees to provide assistance for all persons in need as defined by such committee. In defining persons in need the committee must have regard to s. 19(e) of the Act and to ss. 1(m) and 2(1)(d) of the Municipal Assistance Regulations. These latter sections provide: "1(m) 'municipal social services policy' means written directives relating to the granting of assistance issued by Municipal Council and approved by the Minister; and 2(1) The Social Services Director of the Committee shall: ... (d) provide assistance in accordance with the provisions of the Act, these regulations and the municipal social services policy." Pursuant to the foregoing statutory authority, the City of Halifax has approved municipal assistance policies. Policy Statement 1.1.4 provides the following definition of person in need: "1.1.4 DEFINITION OF NEED person who by virtue of loss of employment, disability, insufficient income, inability to obtain employment, loss of principal family provider or age is found on the basis of 'needs test' to be unable to meet or maintain his budgetable requirements. person incapable of achieving personal or economic independence through lack of personal resources can be considered person in need. Various services exist to meet an individual's various needs, Municipal Social Assistance is only one such service." M.S.A. Policy 1.1.5 establishes the general criteria respecting the determination of eligibility for assistance. This policy statement provides for "needs test" used to determine either budget deficit or budget surplus. If there is budget surplus, then the applicant does not qualify for assistance. At the time of her application the appellant was 16 years old and had no independent source of income, but rather was being supported entirely by her stepfather. The City of Halifax has been providing social assistance to the appellant since the birth of her son.. therefore can only assume that she is considered as being person in need of assistance. In statement of procedure, effective last October, it is stated in part: "Single Head of Family between their 16th and 19th Birthday D. The City of Halifax further wants to encourage the dependent single parent to benefit from his/her parents knowledge in child care and wants the dependent single parent to take advantage of completing their education and/or training to increase their prospects for financial independence in adulthood. Because the City of Halifax is at the same time anxious that the dependent single parent and his/her child not present financial burden to the family (such burden being an impediment to positive relationship within the family), the City of Halifax is prepared to provide financial assistance when the following criteria have been met. a) the dependent single parent provides proof of parentage and/or legal custody (usually by birth certificate or court order when not the biological parent). b) the parent(s) of the dependent single parent must approve of the application (usually by co‑signing the application for assistance). Should this approval not be given, the application will not be accepted. c) the dependent single parent provides proof of Family Court Hearing date respecting maintenance from the father [or parent(s)] of the child. d) the dependent single parent provides proof that an application for Family Benefits has been submitted." The appellant has met all the required criteria set out in the foregoing statement of procedure and, as mentioned, is now receiving social assistance. If the interpretation given to M.S.A. Policy 1.2.5, by Mr. Justice Rogers is correct, then an unmarried mother, like the appellant, pending the birth of her first child, could not qualify for municipal assistance even if she was completely maintaining herself without any family support. She would not qualify because she would not be "a single head of family" because she would not be maintaining home for herself and one or more dependent children. The result would be that if two 16 year old girls in identical circumstances were pregnant but one had previous child, the latter could qualify for assistance, but the former could not. That result surely was not what the City intended when it enacted M.S.A. Policy 1.2.5. In my view, the provisions relating to assistance for "unmarried mother pending birth" in M.S.A. Policy 1.2.5 is and was intended to be simply provision providing the circumstances under which an unmarried mother was to be considered eligible for assistance pending birth. Such eligibility is not and was not intended to be dependent upon the unmarried mother maintaining home for herself and one or more dependent children. This interpretation appears to have been recognized by the Appeal Board when it said that although the provision allows the Municipality "to consider support for an unmarried mother pending birth ... it is not mandatory". Policy statements are made by municipalities under the authority of s. 23(1) of the Social Assistance Act. This provision, as noted earlier, makes it mandatory that social service committees shall furnish assistance to persons in need. Delegated legislation cannot be broader than the enabling legislation and, therefore, in my opinion, the Appeal Board erred in treating the provision in question as creating discretionary right to assistance. It follows that the application to quash the Appeal Board's decision should have been granted for that reason alone. For the foregoing reasons, it is my opinion that both the Appeal Board and Mr. Justice Rogers erred in the manner described. would, therefore, allow the appeal without costs; set aside the decision of the learned Chambers judge and any order based thereon; allow the application of the appellant for an order in the nature of certiorari; quash the decision of the Social Assistance Appeal Board and remit to the Social Services Department of the City of Halifax the application of the appellant for social assistance for the period June 19, 1989, to the date of the birth of her son. J.A. Concurred in: Jones, J.A. CHIPMAN, J.A.: (dissenting) This is an appeal from decision of Mr. Justice Rogers [(1990), 92 N.S.R. (2d) 254] dismissing the appellant's application for an order in the nature of certiorari to quash the decision of the Social Assistance Appeal Board (the Board) for the Sity of Halifax which confirmed the denial of the appellant's application for municipal assistance. On June 19, 1989 the appellant, an unmarried, pregnant 16 year old girl applied to the Social Services Department of the City of Halifax (the Sity) for municipal assistance. She was, at the time, living in the home of her mother and stepfather, where she was being supported. Her affidavit placed before the Social Assistance Appeal Board stated inter alia: "14. THAT am currently living in my parents home because realize that can use and appreciate the emotional support that my parents, but especially my mother are providing for me at this point; 15. THAT have considered living apart from them but feel that can use my mother's support as much as possible now and it is for this reason am continuing to live in their home." The application was refused by Ann Hopp, the Social Assistance worker because the appellant was under 19 years of age and was living with and being supported by her mother and stepfather. On appeal from such refusal, the Board in its unanimous decision said: “.. In this case, the Municipality has indicated they are prepared to assist Catherine's parents with all of the extra expenses for food, clothing and any additional shelter expenses caused by the birth of their grandchild. The Family Maintenance Act states that the parents are responsible for the financial support of their children until age 19 and the Board accepts the Municipality's argument that they are not obliged at law to provide assistance directly to Catherine. The Municipality is willing to accept an application for support from Catherine's parents, however, it appears that they would be ineligible. because their budget information shows surplus. The Municipality will provide support to Catherine's parents for Catherine's child once the child is born." In dismissing the application for an order in the nature of certiorari, Mr. Justice Rogers found that the appellant was supported by her parents and that she did not qualify under Municipal Assistance Policy 1.2.5 (M.S.A. Policy 1.2.5) of the City providing for assistance to the single head of family. On appeal to this Court, counsel for the appellant says that the trial judge erred in misapprehending the municipal social assistance scheme and M.S.A. Policy 1.2.5 in particular. Short term assistance, with which we are here concerned, is provided by the Municipalities in this province under the Social Assistance Act S.N.S., 1970, c. 16. The Province of Nova Scotia furnishes reimbursement to the Municipalities in accordance with the Regulations made under that Act. The duty of Municipality to provide for social assistance is set out in s. 23(1) of the Act which reads: "23(1) Subject to this Act and the regulations the. social services committee shall furnish assistance to all persons in need as defined by the social services committee who reside in the municipal unit." person in need is defined in s. 19(e) as follows: "19(e) 'person in need' means person who, by reason of adverse conditions requires assistance in the form of money, goods or services;" In determining who are persons in need, the' Social Services Sommittee must have regard to s. 19(e) of the Act and to ss. 1(m) and 2(1)(d) of the Municipal Assistance Regulations which provide: "1(m) 'municipal social services policy' means written directives relating to the granting of assistance issued by Municipal Council and approved by the Minister; and 2(1) The Social Services Director of the Committee shall: (d) provide assistance in accordance with the provisions of the Act, these regulations and the municipal social services policy." Pursuant to the foregoing, the City has approved Municipal Assistance Policies which include 1.1.4 and 1.2.5: "1.1.4 DEFINITION OF NEED person who by virtue of loss of employment, disability, insufficient income, inability to obtain employment, loss of principal family provider or age is found on the basis of 'needs test' to be unable to meet or maintain his budgetable requirements. person incapable of achieving personal or economic independence through lack of personal resources can be considered person in need. Various services exist to meet an individual's various needs, Municipal Social Assistance is only one such service." 1.2.5 SINGLE HEAD OF FAMILY single head of family is that person who maintains home for herself/himself and one or more of her dependent children. single head of family may be: a. separated parent b. divorced parent c. deserted parent d. widowed parent e. an unmarried parent f. parent having spouse in an Institution If the separation or desertion is the result of common‑law relationship, the applicant shall be considered an unmarried parent unless previously married. An applicant who is currently living common‑law relationship or who has remarried shall not be considered as single head of family. PROCEDURE Where it is indicated that the applicant is in one of the above categories they are expected to obtain alternate income, ie. gain support from the spouse or possible father and apply for Family Benefits, Canada Pension or any resource where she might be eligible for benefits. If considered able, the applicant is expected to become self-supporting through gainful employment. UNMARRIED MOTHER PENDING BIRTH An unmarried mother pending birth can be considered eligible for assistance when she provides medical confirming her pregnancy and outlines an acceptable case plan (a plan which demonstratively indicates actions on part of the U.M.P. that will lead to an improved quality of life for her and her child." In Woodard v. Lynch, et al. (1983), 64 N.S.R. (2d) 429, Hallett, J. (as he then was) made an extensive review of the legislative scheme set up under the Act, the Regulations and the Municipal Assistance Policies, with particular regard to those of the Sity. He concluded at p. 438 that if the Board misinterprets the Policy, it is an error in law which, if it appears on the face of the record, may be quashed by this Court. agree and would also point out that the same results follow if the Board misinterprets the Act or the Regulations. Dealing with s. 23 of the Act, Hallett, J. said at p. 440: "Section 23 of the Act provides that, subject to the Act and the Regulations, the Social Services Sommittee shall furnish assistance to all persons in need as defined by the Sommittee. That section seems to impose in‑the clearest terms the obligation on the municipal unit to provide the assistance and to leave it to the municipal unit to define who is person in need and the extent of the assistance to be provided. There is obviously conflict that must be resolved. As stated by counsel for the parties, the drafting leaves something to be desired. am of the opinion, in looking at the Act, the Regulations and the Policies approved by the Minister, that the primary obligation to determine who gets what in. the way of municipal assistance is on the municipal units and, secondly, that the primary purpose of the Regulations is to establish framework for the providing of assistance by the municipal units that will qualify it for reimbursement..." In my opinion, the evidence does not establish that the appellant is person in need within the definition of either s. 19(e) of the Act or M.S.A. Policy 1.1.4. see no error on the part of the caseworker acting on behalf of the Social Services Director of the Sity or the Board in affirming her decision. M.S.A. Policy 1.2.5 provides for assistance to the single head of family. The final paragraph of this provision regarding unmarried mothers pending birth gives an extended meaning to single head of family, so as to include the unwed mother of the child not yet born. Apart from this extension, the requirement that the parent be single head of the family who maintains home for herself still stands. All that is deleted from the requirement is "and one or more of her dependent children". In place thereof is substituted the requirement that she be expecting child and outline an acceptable case plan as set forth in the policy. There is nothing unusual or unfair about this special requirement that might distinguish between ,pregnant woman without another child and one with another child. fully agree with Mr. Justice Rogers when he said: "This paragraph, however, located as it is within the boundaries of the policy section respecting single heads of family, can only have reference to the earlier provisions of Section 1.2.5 and in my opinion is just method of extending eligibility to single head of family who is about to become an unmarried parent although not yet one. The key point here is that Satherine McInnis, although an expectant mother, is not the head of family maintaining home for herself and dependant child. It is Catherine's stepfather who is the head of family and maintaining the household in which Catherine lives. It is true that the Board phrased its reason for refusal of assistance initially on the basis that the paragraph having to do with unmarried parents pending birth is not mandatory. Whether the provisions of this paragraph are mandatory or discretionary is, in my view, irrelevant since Satherine did not meet the first requirement for assistance under this head, that of maintaining household." The evidence does not show the appellant to be person in need as defined in any part of the legislative scheme. She was not by reason of adverse conditions requiring assistance nor could, through lack of personal resources, be considered person in need. Mr. Justice Rogers was correct in affirming the decision of the Board. This decision was made on August 4, 1989 with reference to the appellant's application of June 19, 1989. Subsequent to the decision of the Board, the appellant gave birth to child. We have been informed that the Sity has provided the appellant with assistance since the birth of that child. This can be taken as evidence that she is now considered to be person in need under M.S.A. Policy 1.2.5 and in particular, Sub Policy 1.2.5.3 D. This is not evidence that she qualified as person in need under M.S.A. Policy 1.2.5 at the material time which was before the birth of the child. would dismiss the appeal without costs. J.A. 1989 S.C.A. No. 02181 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the SOCIAL ASSISTANCE APPEAL BOARD BETWEEN: CATHERINE MCINNIS and HAROLD CROWELL Director, Social Planning Department, City of Halifax RESPONDENT HEARD BEFORE: The Honourable Mr. Justice R. MacLeod Rogers PLASE HEARD: Halifax, Nova Scotia DATE HEARD: September 5, 1989 COUNSEL: VINCENT CALDERHEAD, FOR THE APPELLANT MR. BARRY ALLEN, FOR THE RESPONDENT APPLICATION ON APPEAL S.C.A. No. 02181 IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION BETWEEN: CATHERINE MCINNIS and HAROLD CROWELL, Director Social Planning Department, City of Halifax Respondent REASONS FOR JUDGMENT BY: MACDONALD, J.A. CHIPMAN, J.A. dissenting

This was an appeal from a decision dismissing the appellant's application for an order in the nature of certiorari to quash the decision of the Social Assistance Appeal Board for the City of Halifax which affirmed the rejection of the appellant's application for municipal social assistance as an expectant mother. The appellant was a pregnant unmarried 16 year old living with her parents at the time of her application for social assistance. The trial judge concluded that under Municipal Assistance Policy 1.2.5 the applicant was not eligible since she was not a single head of a family maintaining a home for herself and her dependant child. Allowing the appeal, that s. 23(1) of the Social Assistance Act places a mandatory responsibility upon social service committees to provide assistance for all persons in need as defined in s. 19(e) of the Act. Pursuant to this statute, the City of Halifax has approved municipal assistance policies and Policy 1.2.5 relating to an 'Unmarried Mother - Pending Birth' was intended to set out the circumstances under which an unmarried mother was to be eligible. It was not intended that the appellant have to be already maintaining a home for herself and one or more dependant children. In a dissenting opinion, Chipman, J.A. concluded that as the provision with respect to an 'Unmarried Mother - Pending Birth' came under the heading 'Single Head of Family', the provision is merely an extension to include within the definition of a single head of a family an unwed mother whose child is not yet born. The requirement that she be a single head of a family maintaining a home still stands.

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